US Targeted Killing, Quasi-Secrecy and the Assassination Ban', Security Studies, Vol

University of Birmingham

Killing norms softly Quinn, Adam; Banka, Andris

DOI: 10.1080/09636412.2018.1483633 License: Creative Commons: Attribution (CC BY)

Document Version Publisher's PDF, also known as Version of record Citation for published version (Harvard): Quinn, A & Banka, A 2018, 'Killing norms softly: US targeted killing, quasi-secrecy and the assassination ban', Security Studies, vol. 27, no. 4, pp. 665-703. https://doi.org/10.1080/09636412.2018.1483633

Link to publication on Research at Birmingham portal

General rights Unless a licence is specified above, all rights (including copyright and moral rights) in this document are retained by the authors and/or the copyright holders. The express permission of the copyright holder must be obtained for any use of this material other than for purposes permitted by law.

•Users may freely distribute the URL that is used to identify this publication. •Users may download and/or print one copy of the publication from the University of Birmingham research portal for the purpose of private study or non-commercial research. •User may use extracts from the document in line with the concept of ‘fair dealing’ under the Copyright, Designs and Patents Act 1988 (?) •Users may not further distribute the material nor use it for the purposes of commercial gain.

Where a licence is displayed above, please note the terms and conditions of the licence govern your use of this document.

When citing, please reference the published version. Take down policy While the University of Birmingham exercises care and attention in making items available there are rare occasions when an item has been uploaded in error or has been deemed to be commercially or otherwise sensitive.

If you believe that this is the case for this document, please contact [email protected] providing details and we will remove access to the work immediately and investigate.

Download date: 01. Oct. 2021 Security Studies

ISSN: 0963-6412 (Print) 1556-1852 (Online) Journal homepage: https://www.tandfonline.com/loi/fsst20

Killing Norms Softly: US Targeted Killing, Quasi- secrecy and the Assassination Ban

Andris Banka & Adam Quinn

To cite this article: Andris Banka & Adam Quinn (2018) Killing Norms Softly: US Targeted Killing, Quasi-secrecy and the Assassination Ban, Security Studies, 27:4, 665-703, DOI: 10.1080/09636412.2018.1483633 To link to this article: https://doi.org/10.1080/09636412.2018.1483633

Published online: 19 Jul 2018.

Submit your article to this journal

Article views: 8075

View related articles

View Crossmark data

Citing articles: 2 View citing articles

Full Terms & Conditions of access and use can be found at https://www.tandfonline.com/action/journalInformation?journalCode=fsst20 SECURITY STUDIES 2018, VOL. 27, NO. 4, 665–703 https://doi.org/10.1080/09636412.2018.1483633

Killing Norms Softly: US Targeted Killing, Quasi-secrecy and the Assassination Ban

Andris Banka and Adam Quinn

ABSTRACT This article argues that when actors engage in controversial new security practices, it is misconceived to view secrecy as an opposed, counterproductive alternative to the pursuit of legitimation. Rather, we propose, deployment of “quasi-secrecy”—a combination of official secrecy with leaks, selective disclosure, and de facto public awareness—can be an effective strategy for achieving normalization and legitimation while containing the risks entailed by disclosure. We support this claim via a detailed case study of US targeted killing. First, we establish the existence of an American norm against targeted killing during the period 1976–2001. We then detail the process by which an innovation in practice was secretly approved, imple- mented, became known, and was gradually, partially officially acknowledged. We argue that even if quasi-secrecy was not in this instance a coherently-conceived and deliberately pursued strategy from start to finish, the case provides proof of concept for its potential to be deployed as such.

Introduction How does a once-forbidden practice become normal, legitimate, even routine? More specifically, how can those in government who desire this outcome make it so? We ask this question apropos of a particular case: the program of targeted killing conceived and executed by the United States under the presidencies of George W. Bush and Barack Obama. In construct- ing an answer, we proceed as follows. First, we define targeted killing. Next, we survey general theory regarding how political actors accomplish normative shifts, scrutinizing the intuitively plausible idea that engineering a stable new normative settlement requires direct and persuasive public advocacy for any innovation. In this framework, secrecy is an alternative to legitimating new practices—and likely a counter-productive one. Using US targeted killing as a detailed case in support, we propose a contrary analysis: that official secrecy, deployed in a partial form we term “quasi-secrecy,” can play an

Andris Banka is assistant professor in International Relations at C¸ag University in Turkey. Adam Quinn is senior lecturer in International Politics at the Department of Political Science and International Studies, University of Birmingham, UK. ß 2018 The Author(s). Published by Taylor & Francis Group, LLC. This is an Open Access article distributed under the terms of the Creative Commons Attribution License (http://creativecommons. org/licenses/by/4.0/), which permits unrestricted use, distribution, and reproduction in any medium, provided the original work is properly cited. 666 A. BANKA AND A. QUINN

instrumental role in the process of normalizing potentially controversial shifts. With the central argument thus outlined, section 2 concludes by providing a concise explanation of the concept of quasi-secrecy and the context for its deployment in this case, as well as some methodological reflection regarding the parameters of what we seek to demonstrate. Turning to the case in detail, we first establish that between 1976 and 2001, US administrations operated as though the executive order banning assassination tightly constrained, and perhaps prohibited altogether, US Central Intelligence Agency (CIA) operations with the direct aim of killing specified individuals. This prohibition was domestic in origin, stemming from the Church Committee’s recommended reforms of the intelligence agencies in the 1970s. Second, we establish that after September 2001, this prohibition was reinterpreted to permit a category of killing previously treated as proscribed. Facilitated by technological advance, this practice subsequently became frequent and routinized. While this shift did not consti- tute a total erasure of the norm against assassination, it did represent a substantial revision of it and constriction of its scope. Third, we detail and analyze the process by which the shift in practice became publicly known and via which the executive sought to legitimate it. Here we demonstrate the operation of quasi-secrecy and illustrate its utility for normalizing potentially controversial innovation. We conclude that this case provides proof of concept for quasi-secrecy’s viability as a legitimation strategy. Even if we do not suppose it to have been clearly and comprehensively conceived as such at the outset in this instance, it could indeed be deployed as deliberate strategy in the future.

Defining Targeted Killing (and Assassination) Targeted killing, for our purposes here, means the deliberate killing of an identi- fied individual, specified in advance as the target, approved by an authorized part of a government bureaucracy without independent judicial process.1 The distinction between permissible targeted killing and assassination— and the sustainability of such a distinction—is a matter of contest. In common parlance, assassination refers to any planned, individually-targeted extrajudicial killing with a political or ideological rationale, especially where the target occupies a leadership role. In international law, the permissibility of such killing hinges on whether the target can be legitimately classified as a combatant in war, their location relative to the lines of battle, and whether treachery or perfidy is

1 Gabriella Blum and Philip Heymann, “Law and Policy of Targeted Killing,” Harvard National Security Journal 1 (2010): 148; Avery Plaw, Targeting Terrorists: A License to Kill? (London: Routledge, 2008), 3; John Yoo, “Assassination or Targeted Killings after 9/11,” New York Law School Review, 56, no. 1 (2011): 79; Nachman Ben-Yehuda, “Gathering Dark Secrets, Hidden and Dirty Information,” Qualitative Sociology 13, no. 4 (December 1990): 349. SECURITY STUDIES 667

involved in the execution.2 Preemptive use of lethal force against individuals outside a conventional battlefield may be justified by appeal to the principle of self- defense, but legal scholars have sought to establish criteria limiting this. The threat must be clear and imminent, not “distant, unviable, or merely foreseeable.”3 The killing should not simply be punishment for past action: the individual targeted must be “actively involved in an imminent attack.”4 The extent of collateral damage must be weighed,5 and the government carrying out the killing should articulate the legal basis for its actions.6 Much remains unresolved in the interpretation of these criteria, however. For example, “there is considerable debate as to how far in anticipation [of harm to oneself] it is legitimate to act.”7 In the analysis that follows, we remain always cognizant of the contested legal and terminological status of lethal acts targeted at individuals designated as terrorists, militants, or enemy combatants. Taking aim at such targets is indeed distinct from plotting to kill a prominent figure in a foreign government, the category of act to which assassination has historically been applied with least controversy. Some may consider that the possibility of drawing such a distinction disposes a priori of the question of how to rec- oncile contemporary US practice with the assassination ban: the killings carried out by the United States did not violate the ban because they were not, by definition, assassinations. To assert this, however, is simply to beg the question; in fact, the point is both contestable and contested.8 It was precisely the goal of the executive, during the period of our focus, to achieve acceptance as unproblematic for a practice that had been treated as

2 A.P.V. Rogers and Dominic McGoldrick, “Assassination and Targeted Killing,” International and Comparative Law Quarterly 60, no. 3 (July 2011): 778–88. 3 Amos N. Guiora, “Targeted Killing: When Proportionality Gets All Out of Proportion,” Case Western Reserve Journal of International Law 45, no. 1 (2012): 249 (quotation); Daniel Statman, “Targeted Killing,” Theoretical Inquires in Law 5, no. 1 (January 2004): 180–98; Norman G. Printer, “The Use of Force Against Non-state Actors Under International Law: An Analysis of the U.S. Predator Strike in Yemen,” UCLA Journal of International Law and Foreign Affairs 8 (Fall 2003): 331; Micah Zenko, “Targeted Killings and Signature Strikes,” Council on Foreign Relations, 16 July 2012, http://blogs.cfr.org/zenko/2012/07/16/targeted-killings-and-signature-strikes/. 4 George Bisharat, “Lawful Versus Wise Policy,” New York Times, 11 November 2012, http://www.nytimes.com/ roomfordebate/2012/11/14/how-can-targeted-killings-be-justified/targeted-killings-may-be-lawful-but-are-they- wise-policy; Howard A. Wachtel, “Targeting Osama Bin Laden: Examining the Legality of Assassination as a Tool of U.S. Foreign Policy,” Duke Law Journal 55, no. 3 (December 2005): 691; Guiora, “Targeted Killing,” 256. 5 Alan, M. Dershowitz, “The Rule of Proportionality,” New York Times, 14 November 2012, http://www.nytimes. com/roomfordebate/2012/11/14/how-can-targeted-killings-be-justified/in-targeted-killings-the-rule-of-proportion ality-should-be-the-guiding-principle. 6 Zenko, “Targeted Killings.” 7 Mark Phythian, “Between Covert and Overt Action: The Obama Administration’s Use of Armed Drones as a Tool of Counterterrorism Policy,” Contemporary Issues in Law 12, no. 4 (2013): 296. See also K.E. Eichensehr, “On Target? The Israeli Supreme Court and the Expansion of Targeted Killings,” Yale Law Journal, 116, no. 8 (June 2007): 1873–81; Mark Sapiro, “Iraq: The Shifting Sands of Preemptive Self-Defense,” American Journal of International Law 97, no. 3 (July 2003): 599–607. 8 Elliot Ackerman, “Assassination and the American Language,” New Yorker, 20 November 2014, http://www. newyorker.com/news/news-desk/assassination-american-language; Avery Plaw and Matthew S. Fricker “Tracking the Predators: Evaluating the US Drone Campaign in Pakistan,” International Studies Perspectives 13, no. 4 (November 2012): 1–22; Ward Thomas, “Norms and Security: The Case of International Assassination,” International Security 25, no. 1 (Summer 2000): 105–133; Betcy Jose, “The Trouble With Targeted Killings: The Rise and Fall of an International Norm,” Foreign Affairs, 12 September 2014, https://www.foreignaffairs.com/ articles/2014-09-12/trouble-targeted-killings. 668 A. BANKA AND A. QUINN

prohibited during the previous two and a half decades. We are not con- cerned with the intellectual or moral correctness of that project, only with the process by which it successfully unfolded.

Theorizing Normative Shifts Norm Establishment and Erosion The established definition of norms in the literature is “collective expecta- tions for the proper behaviour of actors with a given identity.”9 Broadly speaking, norms serve as “rules of the road.”10 They tell us “what the playing board will look like, and which moves are acceptable.11 Norms—when established—may be violated, but this carries a price for the violator, and thus they shape behavior.12 A rich body of scholarship documents instances of norm-building, norm-diffusion, and socialization.13 Instances of norm- weakening have also been charted, though such studies are less numerous.14 The norm life cycle model, introduced by Martha Finnemore and Kathryn Sikkink (1998), provides the archetypal framework for norm establishment: a norm is first proposed by an entrepreneur, then achieves broad acceptance from a critical mass of actors, and finally is widely internalized such that “conformance … is almost automatic.”15 Ryder McKeown (2009) mod- eled the reverse process in the “norm death series.” Here, first revisionists challenge a widely-internalized norm through “quiet changes in policy away from compliance.”16 Struggle then occurs “both in public discourse and

9 Peter J. Katzenstein, ed., The Culture of National Security: Norms and Identity in World Politics (New York: Columbia University Press, 1996), 5. 10 Carmen Wunderlich, “Theoretical Approaches in Norm Dynamics,” in Norm Dynamics in Multilateral Arms Control: Interests, Conflicts, and Justice, ed. Harlad Muller and Carmen Wunderlich (London: University of Georgia Press, 2013), 22. 11 Gregory A. Raymond, “Problems and Prospects in the Study of International Norms,” Mershon International Studies Review 41, no. 2 (November 1997): 215. 12 Katzenstein, “Culture of National Security,” 118; Nina Tannenwald, “The Nuclear Taboo: The United States and the Non-Use of Nuclear Weapons Since 1945 (Cambridge: Cambridge University Press, 2007); Ethan A. Nadelmann, “Global Prohibition Regimes: The Evolution of Norms in International Society,” International Organization 44, no. 4. (Autumn 1990): 479–526. 13 Nadelmann, “Global Prohibition”; Ann Florini, “The Evolution of International Norms,” International Studies Quarterly 40, no. 3 (September 1996): 363–89; Ian Clark, International Legitimacy and World Society (Oxford: Oxford University Press, 2007); Amitav Acharya, “How Ideas Spread: Whose Norms Matter? Norm Localization and Institutional Change in Asian Regionalism,” International Organization 58, no. 2 (April 2004): 239–75; Rodger A. Payne, “Persuasion, Frames and Norm Construction,” European Journal of International Relations 7, no. 1 (March 2001): 37–61. 14 Ryder McKeown, “Norm Regress: US Revisionism and the Slow Death of the Torture Norm,” International Relations 23, no. 5 (March 2009): 5–25; Diana Panke and Ulrich Petersohn, “Why International Norms Disappear Sometimes,” European Journal of International Relations 18, no. 4 ( December 2012): 719–42; Jeffrey S. Lantis, “Redefining the Nonproliferation Norm? Australian Uranium, the NPT, and the Global Nuclear Revival,” Australian Journal of Politics and History 57, no. 4 (December 2011): 543–61; Vincent C. Keating, “Contesting the International Illegitimacy of Torture: The Bush Administration’s Failure to Legitimate its Preferences within International Society,” British Journal of Politics and International Relations 16, no. 1 (February 2014): 1–27. 15 Martha Finnemore and Kathryn Sikkink, “International Norm Dynamics and Political Change,” International Organization 52, no. 4 (Autumn 1998): 904. 16 McKeown, “Norm Regress,” 11. SECURITY STUDIES 669

within government institutions.” If the change achieves widespread acceptance, the previously established norm suffers a crisis of legitimacy and expires.17 Several scholars note that major events—war, revolution, eco- nomic crisis—may trigger or accelerate such shifts.18 Our analysis takes McKeown’s model as its starting point, with a slight adjustment to the level of analysis. The prohibition on assassination is of domestic American rather than international origin, brought into being—as we shall discuss later—by the Church Committee inquiry and resulting reforms in the 1970s. This does not, however, present a conceptual obstacle to our adopting the basic architecture of conventional norm theory; as Finnemore and Sikkink19 and Wayne Sandholtz20 note, it is readily trans- ferable between levels. It requires only minor alteration to the identity- content of the model’s component parts. In our case here, the executive is the initiating agent of change, rather than the US government as a unitary whole, while the primary audience for legitimation efforts is not the global public or international institutions, but the American public and domestic institutions such as Congress and the courts.

Strategies of Legitimation A norm is a bearer of legitimacy.21 Legitimacy cannot be bestowed unilat- erally; its existence presupposes a community “able to pass judgment on appropriateness.”22 Actors sometimes defect from established rules, but even powerful ones are “limited in the costs they can tolerate” and will therefore seek to ground their actions in some claim to legitimacy.23 Vincent Charles Keating provides a typology of strategies available to an actor engaged in behavior that transgresses established normative bounda- ries.24 It posits four alternatives. The first is to act openly in violation of the existing norm with no accompanying effort at justification. If the norm is well-established, however, this can only be a temporary course, since

17 McKeown, “Norm Regress,” 12. 18 Finnemore and Sikkink, “International Norm”; Andrew P. Cortell and James W. Davis, “When Norms Clash: International Norms, Domestic Practices, and Japan's Internalisation of the GATT/WTO,” Review of International Studies 31, no. 1 (January 2005): 3–25; Andrew P. Cortell and Susan Peterson, “Altered States: Explaining Domestic Institutional Change,” British Journal of Political Science 29, no. 1 (January 1999): 188; Deborah Avant, “From Mercenary to Citizen Armies: Explaining Change in the Practice of War,” International Organization 54, no. 1 (Winter 2000): 49. 19 Finnemore and Sikkink, “International Norm,” 893. 20 Wayne Sandholtz, “Dynamics of International Norm Change: Rules Against Wartime Plunder,” European Journal of International Relations, 14, no. 1 (March 2008): 104. 21 Florini, “The Evolution,” 365. 22 Thomas Risse, Stephen C. Ropp, and Kathryn Sikkink, eds., The Power of Human Rights: International Norms and Domestic Change (Cambridge: Cambridge University Press, 1999), 7; Christian Reus-Smit, “International Crises of Legitimacy,” International Politics 44, no. 2 (March 2007): 159; Martha Finnemore, “Legitimacy, Hypocrisy, and the Social Structure of Unipolarity,” World Politics 61, no. 1 (January 2009): 61. 23 Alex J. Bellamy, Massacres and Morality: Mass Atrocities in an Age of Civilian Immunity (Oxford: Oxford University Press, 2012), 31. 24 Keating, “Contesting,” 6. 670 A. BANKA AND A. QUINN

others will demand explanation for transgressive acts, and by definition such behaviour carries cost. The second strategy is overt justification: to acknowledge the relevant actions but assert that one remains compliant with the established norm nevertheless. This tactic will likely involve some creative redescription of either the requirements of the norm or the charac- teristics of the acts in question. The third strategy is overt innovation. In this case, an actor actively advocates amending or overturning the established norm to render their actions permissible. Finally, there is secrecy. In this case, the actor conceals—and denies the existence of—norm-breaking behavior. This strategy does not seek either to justify actions with reference to prevailing norms or to advocate for amending those norms, but rather to evade the need for legitimation altogether. Secrecy is conventionally framed as an undesirable resort, to be employed when an actor does not believe their actions can be successfully publicly defended.25 Ian Hurd, for example, contends that secrecy is a high-risk strategy that can only be a temporary measure.26 Daniel Byman is also critical of secrecy, arguing that without transparency and the resulting public debate, a policy can be held hostage to perfection. If policies are not endorsed beforehand by the public and the political opposition, they will provoke intense controversy when abuses and mistakes occur—as they inev- itably will.”27

Quasi-secrecy: Meaning, Model and Context Building on Keating, our proposition here (supported by analysis of the case) is that although secrecy may sometimes be a temporary, counter- posed and counterproductive alternative to legitimation, it is misconceived to think of it exclusively, or even primarily, in this way. We contend the case of US targeted killing demonstrates that, on the contrary, when official secrecy and de facto public disclosure are combined—the phenomenon we call quasi-secrecy—this can provide an effective mechanism for normalizing controversial practice. In order that the purpose of the following detailed case analysis be maximally clear, we briefly summarize here how and why quasi-secrecy took shape in this instance and present in outline form the conceptual model for its operation. The basic fact that the US government was killing individuals on foreign soil using a new, remotely-controlled technology was known and publicly reported from almost the moment it commenced. The first operational

25 Justin Morris et al., eds., The Rise and Fall of Norms in International Politics (Aberystwyth: International Security and Institutions Research Group, 2009), 5. 26 Ian Hurd, “Breaking and Making Norms: American Revisionism and Crises of Legitimacy,” International Politics, 44, no. 2–3 (March 2007): 210. 27 Daniel Byman, “Do Targeted Killings Work?,” Foreign Affairs 85, no. 2 (March 2006): 109. SECURITY STUDIES 671 installment of the post-9/11 targeted killing program—in Yemen in 2002— was accompanied by a single, under-considered instance of public avowal by a US official (see section 4 for details). The practice itself was therefore de facto not a secret for long. Yet, after that moment of initial confusion, it proceeded for years under a blanket of official secrecy. On grounds of national security, government officials refused to confirm even rudimentary facts and declined to publicly articulate any reasoning reconciling the new practice with established law and norms. Indeed, the program’s very existence remained highly classified. This strategy served two functions for the executive. The first was to restrict access to operational data, such as number of strikes, targets, and casualties. Such information would be steadily and painstakingly assembled through the investigative efforts of journalists, researchers, and others. But official non-acknowledgement of these facts lifted any obligation from government officials to engage publicly with potentially uncomfortable questions regarding collateral damage, cost–benefit analysis, and other sensitive issues. The second function was to obviate the need to publicly articulate the legal basis upon which the policy rested. This curtailed the possibility that public officials would be pressed—on the record—regarding the ultimate logical implications of that legal reasoning, most especially the key question of where (if anywhere) was the outer limit of the executive’s asserted prerogative to kill. Over time, the Obama administration gradually loosened the secrecy governing the program with regard to both operational facts and legal reasoning. It did so first through strategic leaks designed to make publicly known that the United States was pursuing a major, proactive counterterrorist program and portray it in the most favorable possible light. This strategy allowed the administration to claim credit for taking effective action while retaining a shield against critical interrogation on the record. The ground having been thus laid, the administration did later open up officially (to a limited extent), allowing it to claim a belated good faith effort at openness and accountability. Indeed, these claims may have reflected the reality of such good faith. Even at this stage, however, the government retained a regime of classification sufficient to allow (a) selective acknowledgement or denial of operational facts at its own discretion, and (b) curtailment, at the point of its own choosing, of official engagement with discussion of the program’s ultimate legal implications. The result was a regime of quasi-secrecy: the coexistence, over an extended period, of official secrecy and de facto public disclosure regarding an ongoing practice. This allowed relevant audiences, including the public, to grow accustomed to the program’s existence via regular references in the news media and wider culture. At the same time, it contained the risk of 672 A. BANKA AND A. QUINN focused controversy and backlash to a level lower than would have been entailed in full disclosure and direct, uninhibited advocacy for a new normative dispensation. The Bush and Obama administrations, especially the latter, did justify their actions up to a point. But official secrecy was not an alternative to such efforts at legitimation—it was complementary to them. By declining to comprehensively avow operational facts or present with full transparency a claim to new legal authority of specifiable scope and basis, the executive deprived those who would oppose its actions of two things essential to a public contest of ideas through the political system: a mutually- acknowledged baseline of facts and authoritative official interlocutors. Yet there is no evidence that doing so was ultimately counterproductive from an executive branch perspective. On the contrary, when official figures for drone strikes and civilian casualties were finally released in the last year of the Obama presidency, they generated only muted reaction. A major reason for this outcome, we contend, is that those receiving this new information did not perceive it as such. Having been ambiently aware of targeted killing and drone strikes for years, a non-expert member of the public might reasonably—if incorrectly—have supposed the facts provided for the first time in 2016 to have been long since officially acknowledged. Consequently, they might have supposed it to be far too late—and therefore redundant— to initiate discussion about the legal and normative implications of targeted killing; surely such fundamental issues must have been robustly debated and resolved in the proper forums at the appropriate, considerably earlier time? This point will be discussed further in section 6. We should be clear that the realistic objective of any effort to legitimate controversial new practice is not universal support. In this case, the key domestic audiences were the public, Congress, and the judicial establishment: in short, those among whom majority opposition could materially impede the executive’s ability to continue the targeted killing program. Some elements of society were unlikely to ever be persuaded of targeted killing’slegit- imacy, including human and civil rights lobby groups, liberal lawyers, and longstanding critics of expansive executive war powers on both the political left and right. Resistance from such irreconcilables being a given at the outset, the objective was to prevent this foreseeable opposition from gaining wider purchase among higher-priority audiences. A secrecy-skeptical model of legitimation would warn that failure to be transparent at the outset and engage in overt persuasive advocacy for a new normative settlement would prove counterproductive in this regard. But it is our contention that in this case, while secrecy and quasi-secrecy may have frustrated—and indeed continue to frustrate —such elite groups, they did not demonstrably impede the SECURITY STUDIES 673

executive in ultimately securing and maintaining the consent of its priority audiences. To abstract to the general conceptual level: the model for normalization via quasi-secrecy that we posit here has four stages. First, policy is changed to permit acts previously prohibited, and this is kept secret. Second, credible reports of the new practice come from the field and are published, but the executive adopts a blanket stance of refusing to confirm or deny their ver- acity. Third, the executive itself becomes a source of public information about the practice via leaks designed to portray it favorably but continues to maintain official secrecy across the board. Fourth, if the previous stages unfold without generating sufficient opposition to force reconsideration, the executive publicly avows the new practice and may also present on the record selected operational facts and justificatory arguments. This acknowledgement should not be confused with total transparency, however: a significant level of official secrecy may be retained and may continue indefinitely. Finally, a note on context: the success of any legitimation effort is contin- gent at least to some degree on the propitiousness of the circumstances in which it takes place. Our focus in this article is on formal US policy and the actions and statements of government officials. But the events described should be viewed in the light of a substantial scholarly literature on the wider cultural and historical context in which these events occurred. Stephanie Carvin and Michael John Williams have insightfully located twenty-first century American targeted killing within a longstanding national project to craft a “legal–scientific way of warfare that … seeks to balance the need to employ overwhelming force with legal and humanitar- ian concerns through science and technology.”28 Other scholars similarly remind us that contemporary US actions are situated within a longer-term pattern of development in both liberal-democratic and legal norms29 and the technologies of targeting and violence.30 Additionally, we posit more immediate factors that made quasi-secret targeted killing by the United States after 2001 possible. These include: the inaccessibility of locations where most strikes took place, making independent reporting difficult; the CIA’s standing authority to carry out deniable covert operations at the instruction of the president and therefore its ready suitability to serve as the agent of such a program; and the disproportionate international power

28 Stephanie Carvin and Michael John Williams, Law, Science, Liberalism and the American Way of Warfare (Cambridge: Cambridge University Press, 2015), 19. 29 Kyle Grayson, Cultural Politics of Targeted Killing: On Drones, Counter-insurgency and Violence (Abingdon and New York: Routledge, 2016); Frank Sauer and Niklas Schornig,€ “Killer Drones: The ‘Silver Bullet’ of Democratic Warfare?,” Security Dialogue 43, no. 4 (August 2012): 363–80; Craig A. Jones, “Lawfare and the Juridification of Late Modern War,” Progress in Human Geography 40, no. 2 (March 2015): 221–39. 30 Katharine Hall Kindervater, “The Emergence of Lethal Surveillance: Watching and Killing in the History of Drone Technology,” Security Dialogue 47, no. 3 (2016): 223–38; Ian Graham, Ronald Shaw, and Majed Akhter, “The Unbearable Humanness of Drone Warfare in FATA, Pakistan,” Antipode 44, no. 4 (September 2011): 1490–1509. 674 A. BANKA AND A. QUINN

of the United States, which afforded it latitude to brush off outside inquiries about its conduct, such as from the United Nations.

Reflections on Methodology, Case Selection, and Sources Our claims in this article should be viewed within the following parameters. A starting premise of our argument is that the practice of targeted killing has been successfully normalized and legitimated within the American polity. It is therefore not a primary task here to substantiate this premise, but we do provide support for it in section 6, citing public opinion data and acceptance of executive practice by Congress and the courts. Rather, our overriding focus is on the process by which normalization was achieved. In methodological terms, the case evidence and analysis presented below fulfill two functions. First, they serve to falsify two closely related, potential hypotheses: (a) that secrecy is necessarily an oppositional alternative to seeking and obtaining legitimacy for a normative innovation; and (b) that secrecy is always counterproductive to achieving that end.31 To put it another way, this case is shown to be a noncongruent counterexample with regard to those propositions.32 The case’s second, parallel function is to provide an initial probe of the coher- ence and plausibility of the proposition that what we term quasi-secrecy can serve as a viable mechanism for normalizing controversial new practice. This is demonstrated via historical process-tracing of how US practice shifted in the case of targeted killing and how that shift was accounted for publicly. Our findings here provide, we contend, grounds for further pursuit of this line of inquiry in future research, such as detailed comparison with cases in which secrecy also played a role, but where legitimation of new practice proved more elusive, such as the United States’ use of torture and extra-judicial detention. It is important to specify some claims we do not make. Our core claims here, as specified above, are distinct from arguing that a strategy of quasi- secrecy is either necessary to securing legitimation (the only mechanism by which it can be achieved) or sufficient to do so (in other words, assured to succeed in all cases). Testing either of those claims—neither of which we consider prima facie compelling—would require a different research design. We contend only that quasi-secrecy was the mechanism by which legitimation occurred in this instance, and this success is suggestive of its viability and potential utility. Second, we do not maintain that quasi-secrecy was a

31 On the validity of using single cases to contradict hypotheses so long as the case is well-suited as a test of claim, see Ronald Rogowski, “The Role of Teory and Anomaly in Social-scientific Inference,” American Political Science Review 89, no. 2 (June 1995). 32 On congruence, see Alexander L. George and Andrew Bennett, Case Studies and Theory Development in the Social Sciences (Cambridge, MA: MIT Press, 2005), 181–284. SECURITY STUDIES 675

singular, coherently-conceived and deliberately pursued strategy on the part of the Bush or Obama administrations. As the case detail will demonstrate, more than one factor contributed to bringing about the blend of simultaneous classification and disclosure: the demands of foreign governments to obscure their complicity; prudential concern for restricting sensitive operational detail; the desire to win public credit for effective counterterrorist measures; and (perhaps) sincere commitment to some degree of transparency and accountability. Our claim is that whether conceived as a deliberate whole or simply the product of a synthesis of competing pressures, the ultimate de facto strategy of quasi-secrecy proved a highly effective mechanism for achieving normalization of a controversial innovation. We propose that this should be considered initial proof of concept for quasi-secrecy as a strategy that might be deliberately adopted by future administrations in analogous circumstances. Given the objectives just set out, our focus specifically on the American case—as opposed to the practice of targeted killing more widely—can be justified by reference to two considerations. The first is the unusually explicit status of the United States’ prior prohibition of this activity. All countries are governed in principle by the same legal and normative restraints in this area, at least internationally. But the existence of an executive order explicitly banning assassination, interpreted before 2001 as tightly constraining the kind of targeted killing carried out in the years thereafter on large scale, meant that American administrations faced a more acute challenge than others might have when seeking legitimacy for these actions in the eyes of domestic audiences. The second consideration is the scale of the US program and, consequently, the lack of ambiguity as to whether a major shift in practice took place. A small number of other states—including Israel, the United Kingdom and France—engaged in similar lethal actions during the same period. But the United States carried out the largest number of targeted killings and drone strikes by a vast margin. The sheer size of the American program, combined with its systematic and institutionalized character, eliminates scope for any plausible claim that killings in this period merely represented rare anomalous exceptions to a still-standing general prohibition. The sources available for use in this inquiry vary by period. Our por- trayal of the Church Committee era, when the ban on assassination was established, can be grounded fully in archival sources that include declassi- fied materials from the National Security Archive and the Ford Presidential Library. For later periods, during which classification remains in fuller force, the official record is necessarily less complete. Nevertheless, using a combination of public documents, memoirs, and secondary sources based on interviews with participants, it is possible to construct a robust account of how and when practices changed. The account we provide of official 676 A. BANKA AND A. QUINN

acknowledgement of the post-2001 targeted killing program by the executive—what was disclosed publicly (and when) regarding operations and their legal basis—is based on a comprehensive survey of officially available speeches, press conferences, hearings, Congressional debates, legal documents, and published interviews from the period. The account of parallel disclosure-by-leak is likewise grounded in a comprehensive survey of contemporary print media. For certain kinds of inquiry into a practice such as targeted killing, high levels of government secrecy might present a major obstacle.33 The gap between what is known about the practice through indirect reportage and what is officially avowed has been a source of frustration even to those with relatively strong claims to rightful access to information. Philip Alston, UN Special Rapporteur on extrajudicial, summary, or arbitrary executions, complained in 2011 of “an almost surreal tendency on the part of the executive and the courts to pretend that information that has been comprehensively leaked, remains unknown or at least uncognizable,”34 Fortunately for our purposes here, it is precisely this disjunction between facts widely known and those officially acknowledged that is of interest. We do not claim to uncover here new data regarding US covert practice. For the underlying facts of the targeted killing program, we draw upon on the deep reservoir of reportage already assembled on the public record. The signifi- cance of our contribution lies rather in analysis of how quasi-secrecy served the executive’s interest in normalizing it.

The Prohibition at Maximum Force: 1976–2001 Establishment of the Norm Against Assassination The origins of the prohibition on US government deployment of assassination lie in domestic pressures and processes. Specifically, it resulted from the Church Committee investigation into “illegal, improper, or unethical” activities onthepartofintelligenceagencies.35 Despite the Ford administration’spublic position that it would provide “maximum assistance,”36 the committee faced resistance throughout its investigation, first to its full access to intelligence

33 Robert M. Bosco, “The Assassination of Rafik Hariri: Foreign Policy Perspectives,” International Political Science Review 30, no. 4 (September 2009): 350. 34 Philip Alston, “The CIA and Targeted Killings Beyond Borders,” NYU Public Law Research Paper 11, no. 64 (September 2011): 12. 35 Foreign Relations of the United States, 1969–1976, Volume XXXVIII, Part 2, Organization and Management of Foreign Policy; Public Diplomacy, 1973–1976, ed. M. Todd Bennett and Alexander R. Wieland (Washington: Government Printing Office, 2014), Document 31. 36 Nicholas M. Horrock, “Senators Weigh Public Hearings on Assassinations,” New York Times, 11 March 1975; Richard L. Madden, “President Scans C.I.A. Tie To Any Death Plot Abroad,” New York Times, 18 March 1975; Memorandum of National Security Council Staff, “Memo of Conversation, Kissinger, Schlesinger, Colby, Areeda, Hoffman, Silberman, Scowcroft,” Investigation of Allegations of CIA Domestic Activities, 20 February 1975, Gerald R. Ford Library, Gerald R. Ford Papers, National Security Files, Memoranda of Conversations, Box 9. SECURITY STUDIES 677

material,37 then to the public release of its report.38 That report condemned US use of assassination as immoral, logistically precarious, and liable to be counterproductive.39 It also declared that “a system which relies on secrecy” increases the “risk of confusion and rashness in the very areas where clarity and sober judgment were most necessary.”40 The committee favored an assassination ban written into statute,41 but the ultimate outcome was a compromise short of that: an executive order issued on February 18, 1976.42 The order did not define “assassination,” with the result that the scope of the prohibition has been contested among both scholars and officials ever since. Some argue this ambiguity was deliberate, engineered to preserve the future option of narrow interpretation as to what it forbade.43 Others contend that it barred the US government “from directing, facilitating, encouraging, or even incidentally causing the killing of any specified individual.”44 During the period 1976–2001, the assassination ban served as a strong constraining influence on US action. It came under strain from two sources. The first—of lesser importance for our purposes—was provoca- tions from dictators such as Libya’s Muammar Gaddafi, Iraq’s Saddam Hussein, and Panama’s Manuel Noriega. These cases have received extended consideration elsewhere, and we do not discuss them here because targeting heads of state entails the most unambiguous possible violation of the assassination ban; therefore, its consideration in these cases raises issues distinct from those posed by the post-9/11 targeted killing program. Our focus is the second source of strain: terrorism and militancy emerging from the Middle East. This factor invited the US government to narrow its interpretation of the ban to permit targeting terroristic non-state actors. Two examples from this period merit detailed attention, and we treat them individually below. Importantly, neither led to the prohibition being set aside; on the contrary, they serve to

37 Gerald K. Haines, “The Pike Committee Investigations and the CIA: Looking for a Rogue Elephant,” Studies in Intelligence (Winter 1998–1999), https://www.cia.gov/library/center-for-the-study-of-intelligence/csi-publications/ csi-studies/studies/winter98_99/art07.html. 38 Nicholas M. Horrock, “Ford Acts To Bar Death Plot Data,” New York Times, 3 November 1975. 39 Select Committee to Study Governmental Operations with Respect to Intelligence Activities, Alleged Assassination Plots Involving Foreign Leaders, S. Rept. 94–465 at 258; 282 (1975). 40 Ibid., 7. 41 Ibid., 281. 42 Executive Order 11905, 18 February 1976, http://www.presidency.ucsb.edu/ws/?pid¼59348. The prohibition on assassination was subsequently reiterated in Executive Order 12036 (under President Carter) and Executive Order 12333 (under President Reagan). These orders clarified the ban’s scope, removing the ambiguous qualifier “political” which appeared before the word “assassination” in Ford’s original order and specifying that it covered indirect US involvement in assassinations. Executive Order 12036, 24 January 1978, https://fas.org/ irp/offdocs/eo/eo-12036.htm; Executive Order 12333, 1 December 1981, https://www.archives.gov/federal- register/codification/executive-order/12333.html. 43 Dawn L. Rothe and Victoria E. Collins, “The Normality of Political Administration and State Violence: Casuistry, Law, and Drones,” Critical Criminology, 22, no. 3 (September 2014): 379; Wachtel, “Targeting Osama.” 44 Patricia Zengel, “Assassination and the Law of Armed Conflict,” Military Law Review, 134 (October 1991): 145. 678 A. BANKA AND A. QUINN

demonstrate its continuing force. However, they did instigate the first private articulation of legal rationales that would become relevant in the post-9/11 period, making these episodes important precursors to practices later to come.

The Reagan Administration and Lebanese Hit Squads The Reagan administration came close to carrying out targeted killings in Lebanon in reaction to the threat posed by militant Islamist groups such as Islamic Jihad and Hezbollah. Consideration of the tactic began in the spring of 1984 with a secret proposal from National Security Council (NSC) official Oliver North to covertly contract local teams to eliminate those responsible for bombing US facilities.45 Stanley Sporkin, General Counsel to the CIA, privately argued that a legal basis for such action could be found in self-defense and a robust legal distinction could be drawn between North’s proposal and killings of the kind carried out prior to Church and prohibited after 1976.46 This line of reasoning received firm pushback from the CIA, whose leadership at that time per- sonally recalled the reputational damage suffered by the agency due to the Church revelations; CIA Director Richard Helms and his deputy John McMahon believed the proposal violated the assassination ban.47 In the summer of 1985, through a task force on counterterrorism strategy under Vice President George H. W. Bush, officials for the first time for- mally discussed adopting a narrow interpretation of the ban’s scope that excluded terrorists.48 Despite the CIA’s objections, Reagan initially approved the Lebanon proposal. He secretly issued presidential findings—directives, clearing the legal path for the plan—and approximately $1 million was allocated for training and support.49 The United States aborted the plan, however, when a prospective Lebanese contractor carried out an unapproved car bombing, killing eighty and wounding two hundred.50 The presidential findings were also rescinded, although even as White House press secretary Marlin Fitzwater acknowledged this, he denied that the findings involved authorizing assassination, a tactic Vice President Bush also stated publicly would be

45 Robert Chesney, “Military-Intelligence Convergence and the Law of the Title 10/Title 50 Debate,” Journal of National Security Law & Policy 5, no. 5 (January 2012): 550; Bob Woodward, Veil: The Secret Wars of the CIA 1981–1987 (New York: Simon & Schuster, 1987). 46 Chesney, “Military-Intelligence,” 550; Woodward, Veil, 161. 47 Mark Mazzetti, The Way of the Knife: The CIA, a Secret Army, and a War at the Ends of the Earth (New York: Penguin Group, 2013), 68; Woodward, Veil. 48 Doyle McManus, “Assassination Ban May Not Apply in Anti-Terror Raids,” Los Angeles Times, 13 July 1985. 49 Bob Woodward and Charles R. Babcock, “Anti-terrorist Plan Rescinded After Unauthorized Bombing,” Washington Post, 12 May 1985; Woodward, Veil. 50 Woodward and Babcock, “Anti-terrorist Plan.” SECURITY STUDIES 679

“absolutely criminal.”51 Anonymous officials later told the Washington Post that the president’s directives had been deliberately intended to circumvent the existing bar on assassinations.52 This led White House reporter Helen Thomas to directly ask: “Mr. President, did you sign two orders, directive intelligence orders, which appeared to circumvent the assassination directive—ban on assassinations?” Reagan denied he had ever issued a “permit to assassinate anyone in any of the things that we were doing.”53 After leaving office, Reagan would admit that targeted killing had been considered, but claim that he had ultimately decided it was a “game that America couldn’t and didn’t play.”54 Robert Oakley, State Department counterterrorism coordinator under Reagan, later recalled there was “a great debate about whether or not one could do this, and a lot of the laws and regulations and executive orders were studied very, very carefully.”55 There were “differences of opinion within the executive branch,” but in the final analysis the president decided, “no, we are not going to go that route.”56 In light of the role new technology would play later, it is worth taking note that this decision was heavily influenced by practical concerns regarding the likelihood of successful execution, not just internal resistance on legal and normative grounds.

The Clinton Administration and Osama bin Laden Until 1998, Osama bin Laden, though monitored by the CIA, was perceived as a “low priority” threat.57 This assessment changed in 1998 after the bombings of US embassies in Kenya and Tanzania, which killed hundreds. In their wake, President Bill Clinton signed a presidential finding authorizing covert action to capture bin Laden and kill him if he resisted. Clinton would later amend the secret memorandum of understanding that set parameters for the operation a number of times: first expanding the list of permitted targets beyond bin Laden to include a small number of key lieutenants and later authorizing the shooting down of any aircraft or helicopter he might use to escape Afghanistan.58 Richard Clarke, Clinton’s counterterrorism head, notes that the administration was unwilling to approve a straightforward killing and therefore

51 “Reagan: CIA Given No Leeway on Killings,” Chicago Tribune, 10 June 1988, http://archives.chicagotribune.com/ 1988/10/06/page/4/article/reagan-cia-given-no-leeway-on-kilings. 52 Woodward, Veil. 53 “Ronald Reagan, 1988–1989,” Public Papers of the Presidents, Ronald Reagan Presidential Library, 5 October 1988, 1292. 54 Ronald Reagan, An American Life: An Autobiography (New York: Simon & Schuster, 1990), 713. 55 “Interview: Robert Oakley,” PBS Frontline, 28 September 2001. 56 Ibid. 57 National Commission on Terrorist Attacks on the United States, “Responses to Al Qaeda’s Initial Assaults,” The 9/11 Commission Report, 22 July 2004, 110. 58 Charles Cogan, “Hunters Not Gatherers: Intelligence in the Twenty-First Century,” Intelligence and National Security 19, no. 2 (September 2004): 315. 680 A. BANKA AND A. QUINN

produced a series of unusual documents giving “extremely specific authorities for particular CIA operations aimed at bin Laden.”59 According to Clarke, “there was concern in both the Justice Department and in some elements of the White House and some elements of the CIA that we not create an American hit-list that would become an ongoing institution that we could just keep adding names to and have hit teams go out and assassinate people.”60 Investigative reporter Jeremy Scahill, who has had access to many of the Clinton-era national security files, notes the baroque quality of the order: “The authorization for killing bin Laden was built in a way that there almost was one scenario where he could be killed—when he was in certain kind of a house, with a particular brand of lock on the door and only then you can strike the house.”61 According to CIA Director George Tenet, “almost every authority granted to CIA prior to 9/11 made it clear that just going out and assassinating Bin Laden would not have been permissible or acceptable.”62 Years later, during 9/11 Commission hearings, CIA officials and lawyers uniformly said that they had interpreted authorities signed by Clinton as instructing them to try to capture bin Laden alive and that the only acceptable context for killing him would be during a credible operation aimed at capture.63 Two senior CIA officers later said they would have been “morally and practic- ally opposed to getting CIA into what might look like an assassination.” One went so far as to say he would have “refused an order to directly kill Bin Laden.”64

The Bush Administration After 9/11: A Covert Shift Narrowing the Scope of the Prohibition Before 9/11, only one country—Israel—engaged programmatically in targeted killing, and it was criticized by the United States for doing so.65 In July 2001, Secretary of State Colin Powell said of Israel’stargetedhits:“We … express our distress and opposition to these kinds of targeted killings and we will continue to do so.”66 US Ambassador to Israel Martin Indyk stated: “The United

59 Shaun Waterman, “Assassination Ban 'No Shield' for al-Qaida,” UPI, 24 March 2005, http://www.upi.com/ Business_News/Security-Industry/2005/03/24/Assassination-ban-no-shield-for-al-Qaida/29171111717578. 60 “Ex-Counterterrorism Czar Richard Clarke: Bush, Cheney and Rumsfeld Committed War Crimes,” Democracy Now, 2 June 2014. 61 Jeremy Scahill, “Jeremy Scahill on the World as a Battlefield,” Carnegie Council for Ethics in International Affairs Global Ethics Forum, 4 September 2013. 62 George Tenet, At the Center of the Storm: My Years at the CIA (New York: Harper Collins, 2007), 110. 63 9/11 Commission, “Staff Statement No. 7,” Hearing before the National Commission on Terrorist Attacks Upon the United States, 24 March 2004, 3. 64 Ibid., 3. 65 Statman, “Targeted Killing,” 180. 66 Herb Keinon, Janine Zacharia, and Lamia Lahoud, “UN, US: Stop Targeted Killings,” Jerusalem Post, 6 July 2001. SECURITY STUDIES 681

States government is very clearly on record as against targeted assassinations. … They are extrajudicial killings, and we do not support that.”67 In the aftermath of 9/11 however, many criticized the legacy of Church for having neutered the US intelligence community’s capabilities, including Paul Bremer, chairman of the bipartisan National Commission on Terrorism, and Henry Kissinger.68 Former Secretary of State James Baker openly endorsed fully repealing the executive order banning assassination.69 Former President George H. W. Bush said there was a need to “free up the intelligence system from some of its constraints.”70 Within government, several senior figures made statements about the need to revisit restrictions on covert operations, including Vice President Dick Cheney,71 Secretary of State Powell,72 Chairman of the Senate Intelligence Committee Bob Graham,73 and Vice-Chairman Richard Shelby.74 A former CIA official observed that in the post-9/11 environment, there was a feeling that “the things we couldn’t do before, now we can do them.”75 Georgia Congressman Bob Barr even made a formal proposal to overturn “those portions of executive orders purporting to prohibit the government from directly eliminating terrorist leaders.”76 His initiative secured fourteen co- sponsors, though it ultimately went no further.77 These statements drew some public resistance from figures such as Chair of the House Foreign Affairs Committee Lee Hamilton,78 former CIA Director and later Secretary of Defense Robert Gates,79 and Democratic

67 Jane Mayer, “The Predator War,” New Yorker, 26 October 2009, http://www.newyorker.com/magazine/2009/10/ 26/the-predator-war. 68 Chris Mooney, “Back to Church,” American Prospect, 19 December 2001, http://prospect.org/article/back-church; David Corn, “Did We Handcuff the CIA?,” Slate, 18 September 2001, http://www.slate.com/articles/news_and_ politics/politics/2001/09/did_we_handcuff_the_cia.html; Roger Burbach, “Two 9/11s, One Story,” Guardian,10 September 10, 2003, http://www.theguardian.com/world/2003/sep/11/chile.september11. 69 “Interviews: James Baker,” PBS, 15 October, 2001, http://www.pbs.org/wgbh/pages/frontline/shows/gunning/ interviews/baker.html. 70 Michael Smith, “Congress May Lift Ban on CIA Assassinations,” Telegraph, 17 September 2001, http://www. telegraph.co.uk/news/worldnews/northamerica/usa/1340790/Congress-may-lift-ban-on-CIA-assassinations.html. 71 Oliver Burkeman, “US Considers Assassination Squads,” Guardian, 13 August 2002, http://www.theguardian. com/world/2002/aug/13/usa.alqaida. 72 Smith, “Congress May Lift Ban.” 73 James Risen and David Johnston, “A Day of Terror: Intelligence Agencies; Officials Say They Saw No Signs of Increased Terrorist Activity,” New York Times, 12 September 12, 2001, http://www.nytimes.com/2001/09/12/us/ day-terror-intelligence-agencies-officials-say-they-saw-no-signs-increased.html. 74 Risen and Johnston, “A Day of Terror.” 75 Bob Drogin and Greg Miller, “Spy Agencies Facing Questions of Tactics,” Los Angeles Times, 28 October 2001, http://articles.latimes.com/2001/oct/28/news/mn-62715. 76 Administration’s Draft Anti-terrorism Act of 2001: Hearing Before the Committee on the Judiciary, House of Representatives, 107th Cong., 1st sess., September 24, 2001. 77 Jeffrey F. Addicott, “Proposal for a New Executive Order on Assassination,” University of Richmond Law Review 37 (2002): 758; David Ennis, “Preemption, Assassination, and the War on Terrorism,” Campbell Law Review 27, no. 2 (Spring 2005): 263. 78 David G. Savage and Henry Weinstein, “Some Call for Lifting of Assassination Ban,” Los Angeles Times,14 September 2001, http://articles.latimes.com/2001/sep/14/news/mn-45711. 79 Nancy Benac, “Assassination Ban Gets New Look,” Associated Press, 22 September 2001, http://www.fas.org/ sgp/news/2001/09/ap092201.html. 682 A. BANKA AND A. QUINN

Senator Christopher Dodd.80 Outside government, nongovernmental organizations (NGOs) and international lawyers argued for preserving pre-9/11 standards. Human Rights Watch sent a letter to President Bush urging that the United States should remain committed to “investigation, arrest, trial and punishment,” not “executions or targeting non-combatants.”81 M. Cherif Bassiouni, an eminent scholar of international criminal law, warned against having “the intelligence agencies be judge, jury and execu- tioner all wrapped into one. The potential for abuse is too big and the sym- bolism is too harmful.”82 In the event, there would be no open declaration that the restrictions governing targeted killing had narrowed. Rather, there was simply a shift in practice, authorized and executed secretly. As Jonathan Ulrich (2014) notes, the president may legally amend or revoke an executive order without “publicly disclosing that he has done so.”83 During NSC meetings after 9/ 11, President Bush reportedly requested a scorecard: a list of top al Qaeda members to be crossed out after their elimination.84 According to Richard Clarke, Bush told staff on the day of the attacks: “Everything is available for the pursuit of this war. Any barriers in your way, they’re gone.”85 CIA headquarters would become the hub for counterterrorism operations. Bob Woodward reported a senior official in 2001 as stating, vaguely but omin- ously: “The president has given the Agency the green light to do whatever is necessary. The gloves are off. Lethal operations that were unthinkable pre-September 11 are now underway.”86 A landmark moment came on September 15, at a strategy meeting of Bush’s national security team at Camp David, when CIA Director George Tenet put forward a plan to hunt and kill al Qaeda members and associated forces without geographical limitation.87 John Rizzo, a CIA lawyer involved in drafting the proposal, later commented that he had “never seen a presidential authorization as far-reaching and as aggressive in scope.”88 According to Afsheen John Radsan, the assistant general counsel of the CIA, the authorization was “generally worded,” amounting to: “Go out and

80 David Rennie, “Bush Orders Shoot to Kill on Terrorists,” Telegraph, 6 December, 2002, http://www.telegraph.co. uk/news/worldnews/northamerica/usa/1416311/Bush-orders-shoot-to-kill-on-terrorists.html. 81 “U.S. Policy on Assassinations CIA: Letter to Bush Urges Restraint,” Human Rights Watch, 19 September, 2001, https://www.hrw.org/news/2001/09/19/us-policy-assassinations-cia. 82 Savage and Weinstein, “Some Call.” 83 Jonathan Ulrich, “The Gloves Were Never On: Defining the President's Authority to Order Targeted Killing in the War Against Terrorism,” Virginia Journal of International Law 45, no. 4 (September 2005): 1034. 84 Peter L. Bergen, Man Hunt: The Ten-Year Search for Bin Laden from 9/11 to Abbottabad (New York: Random House, 2012), 142; Risen and Johnston, “A Day of Terror”; Bob Woodward, State of Denial: Bush at War Part III (New York: Simon & Schuster, 2006), 330. 85 Richard A. Clarke, Against All Enemies: Inside America’s War on Terror (New York: Free Press, 2004), 24. 86 Bob Woodward, “CIA Told to Do “Whatever Necessary” to Kill Bin Laden,” Washington Post, 21 October 2001, http://www.washingtonpost.com/wp-dyn/content/article/2007/11/18/AR2007111800655.html. 87 Mark Mazzeti and Scott Shane, “C.I.A. Had Plan to Assassinate Qaeda Leaders,” New York Times, 13 July 2009, http://www.nytimes.com/2009/07/14/us/14intel.html?_r¼0. 88 “Target America,” PBS Frontline, 30 April, 2013, https://www.pbs.org/wgbh/frontline/film/topsecretamerica/. SECURITY STUDIES 683

get the bad guys. Disrupt them, kill them, interrogate them.”89 William C. Banks characterizes the authority transferred to the CIA as the “most sweeping and most lethal” since the agency’s creation.90 A decade later, President Bush would acknowledge having granted broad authority to the CIA for covert actions, including “permission to kill Al Qaeda operatives,”91 something he knew to be “a significant departure from America’s policies over the past two decades.”92 Following this authorization, instructions cascaded through the national security agencies. Josef “Cofer” Black, director the CIA’s Counterterrorism Center, reportedly briefed his team as follows on September 19th: “Iwanttogiveyou your marching orders, and I want to make them very clear. I have discussed this with the President and he is in full agreement … Idon’twantbinLadenandhis thugs captured, I want them dead. … They must be killed. I want to see photos of their heads on pikes. I want bin Laden’sheadshippedbackinaboxfilledwith dry ice.”93 Gary Schroen, in charge of the subsequent CIA incursion into Afghanistan, later recalled that it was the first time he had received an order to kill rather than seek to capture a target.94 The CIA prepared a list of about “two dozen terrorist leaders” who could now could be targeted and killed.95 Tenet requested and received additional authorization for the CIA to add further names to this list without further presidential approval.96 In terms of both operational substance and oversight, this represented a major rollback of key elements of the Church reforms.97 The first targeted strike outside a conventional battlefield took place in Yemen on November 3, 2002, killing Qaed Salim Sinan al-Harethi, a high- level al Qaeda operative, and five others.98 The president was not asked to authorize the specific strike; it was approved by senior officials in the CIA and military using the authority delegated to them.99 The event also served, in a backward sort of way, to underscore the imperative of secrecy. In the

89 Ibid. 90 William C. Banks, “The Predator,” in Terrorism and Peacekeeping: New Security Challenges, ed. Volker C. Franke (London: Praeger, 2005), 146. 91 George W. Bush, Decision Points (New York: Crown Publishers, 2010), 165. 92 Ibid., 169. 93 Trevor McCrisken and Mark Phythian, “US Intelligence and the War on Terror,” in Obama and the World, ed. Inderjeet Parmar (New York: Routledge, 2014), 186. 94 Gary Schroen, First In: An Insider's Account of How the CIA Spearheaded the War on Terror in Afghanistan, Reprint Edition (New York: Presidio Press/Ballantine Books, 2005), 38. 95 “Bush Gives CIA License to Kill Terrorist Leaders,” Chicago Tribune, 15 December 2002, http://articles. chicagotribune.com/2002-12-15/news/0212150457_1_approval-for-specific-attacks-cia-and-military-effort-high- value-target-list. 96 Bob Woodward, Bush at War (New York: Simon & Schuster, 2002), 66; Bush, Decision Points, 165; Rennie, “Bush Orders Shoot to Kill.” 97 Horrock, “Ford Acts”; Mazzetti, Way of the Knife, 30. 98 Mark Hosenball, “The Opening Shot,” Newsweek, 17 December 2002, http://www.newsweek.com/opening- shot-142611. 99 James Risen and David Johnston, “Threats and Responses: Hunt for Suspects; Fatal Strike in Yemen Was Based on Rules Set Out by Bush,” New York Times, 5 November 2002, http://www.nytimes.com/2002/11/06/world/ threats-responses-hunt-for-suspects-fatal-strike-yemen-was-based-rules-set-bush.html. 684 A. BANKA AND A. QUINN

immediate aftermath of the strike, Deputy Secretary of Defense Paul Wolfowitz took a celebratory public stance, praising the strike on CNN as “a very successful tactical operation. … One hopes each time you get a success like that, not only to have gotten rid of somebody dangerous, but to have imposed changes in their tactics and operations.”100 Unwittingly, Wolfowitz triggered a diplomatic crisis with his remarks: the Yemeni government had agreed with Washington that Yemen would claim responsibility, and it did not receive this surprise reversal well.101 After this singular initial misstep, however, a wall of official secrecy descended. It would be almost a decade before any high-level government official would next comment on the record regarding a targeted killing.

Technological Advance as Driver and Enabler Unmanned aerial vehicles (UAVs or drones) were first used in nonarmed form during the Balkan crisis of 1995.102 The idea of using them as a tool for targeted killing emerged gradually during the Clinton years. A CIA surveillance drone in 1999 spotted bin Laden in Afghanistan, but the five hour preparation time required by the Pentagon to organize a missile strike allowed him to escape.103 Following this, the project of arming drones (with Hellfire missiles) was put on fast-track. Initially, the CIA was opposed; just a week before 9/11, Director Tenet was quoted saying it would be “a terrible mistake” for the agency to take on this operational role.104 His assessment immediately changed with 9/11. In his September 15 Camp David presentation, Tenet briefed administration officials for the first time on armed drones.105 The first armed drone mission took place in Afghanistan on October 7.106 The program of drone strikes outside of conventional battlefields started slowly during the Bush administration, with just a few strikes against high- level targets. Following the first one, President Bush was sufficiently impressed to ask: “Why do we fly only one Predator at a time, we ought to

100 “US 'Still Opposes' Targeted Killings,” BBC, 6 November 2002, http://news.bbc.co.uk/1/hi/world/middle_east/ 2408031.stm. 101 Hosenball, “Opening Shot”; Jeremy Scahill, Dirty Wars: The World is a Battlefield (New York: Nation Books, 2013), 94. 102 Fred Kaplan, “Killing Machine,” New York Times, 10 May 2013, http://www.nytimes.com/2013/05/12/books/ review/the-way-of-the-knife-by-mark-mazzetti.html; Richard Whittle, “How Drones Have Revolutionized Warfare,” Mimi Geerges Show, 22 December 2014, https://www.youtube.com/watch?v¼xb2ke-phKH4. 103 “Hank Crumpton: Life as a Spy,” CBS News, 14 May 2002, http://www.cbsnews.com/news/hank-crumpton-life- as-a-spy/. 104 Mayer, “Predator War”; Richard Whittle, “Interview: The Drone That Started It All,” Center for the Study of the Drone, 13 November 2014, http://dronecenter.bard.edu/predator-drone-that-started-it-all. 105 Tenet, Center of the Storm, 178. 106 George Tenet, “Written Statement for the Record of the Director of Central Intelligence before the National Commission on Terrorist Attacks Upon the United States,” National Commission on Terrorist Attacks Upon the United States, 24 March 2004, https://9-11commission.gov/hearings/hearing8/tenet_statement.pdf. SECURITY STUDIES 685

have fifty of these things.”107 But the second strike did not take place until the summer of 2004, in Pakistan, targeting Taliban leader Nek Mohammad. Per agreement with Washington, the Pakistani government claimed responsibility, denying American involvement as “absolutely absurd.”108 The campaign had gathered pace by the time Bush’s second term was drawing to a close, however. By one account, the administration authorized thirty-six strikes (outside of conventional military combat) in its final year, having carried out just nine in all previous years.109 Some targets were high-level al Qaeda figures, such as Ayman al-Zawahiri (who evaded efforts to kill him) and Abu Musab al-Zarqawi; others were unknown to the wider public. According to Long War Journal, Bush authorized forty-six such strikes during his presidency.110 The New America Foundation put the count at forty-eight, with an estimated 399–540 deaths resulting.111 Official secrecy meant the administration refused to provide its own numbers. A link between technological innovation and normative change has previously been noted by several scholars.112 If the United States had not acquired armed drone capabilities, targeted killings would likely still have been part of the “War on Terror”; prior to expansion of the drone program, special forces and private contractors had been directed to prepare for such missions. But as noted earlier, logistical difficulty and associated risk had been a discouraging factor in previous administrations’ consideration of plots to kill. Drone technology altered this calculus, increasing the confidence with which policymakers could expect targeted killing operations to achieve their objectives at acceptable risk and cost. By so doing, it incentivized a more permissive interpretation of rules constraining such action. The development of drone technology was a double-edged sword with regard to maintaining secrecy. On the one hand, by protecting US personnel from physical jeopardy, drones eliminated the need to account for American casualties in the field should things go wrong, a common trigger for forced disclosure of violent overseas operations. On the other hand, although the technology made it easier to keep any single strike secret, it

107 Whittle, “How Drones Have Revolutionized Warfare.” 108 Nic Robertson and Greg Botelho, “Ex-Pakistani President Musharraf Admits Secret Deal with U.S. on Drone Strikes,” CNN, 12 April 2003, http://edition.cnn.com/2013/04/11/world/asia/pakistan-musharraf-drones/? hpt¼hp_t2. 109 John Kaag and Sarah Kreps, Drone Warfare (Cambridge: Polity Press, 2014), 11. 110 “Charting the Data for US Airstrikes in Pakistan, 2004–2014,” FDD’s Long War Journal, 21 April 2014, http:// www.longwarjournal.org/pakistan-strikes. 111 “Drone Strikes: Pakistan,” New America Foundation, https://www.newamerica.org/in-depth/americas- counterterrorism-wars/pakistan/. 112 Paul Kowert and Jeffery Legro, “Norms, Identity and Their Limits: A Theoretical Reprise,” in The Culture of National Security: Norms and Identity in World Politics, ed. Peter J. Katzenstein (New York: Columbia University Press, 1996); Kalevi J. Holsti, Taming the Sovereigns: Institutional Change in International Politics (London: Cambridge University Press, 2004); Wayne Sandholtz and Kendall Stiles, International Norms and Cycles of Change (Oxford: Oxford University Press, 2009). 686 A. BANKA AND A. QUINN

incentivized an increase in their number and frequency that made public reportage—and thus ultimate disclosure of the program—more likely. Once disclosure did take place, however, technology was broadly helpful to the executive’s need to keep domestic audiences’ favor. Removing loss of American lives from among the possible liabilities of targeted killing operations eliminated a primary reason for opposing them. In addition, it provided some basis in fact for claiming that the United States could strike targets with unprecedentedly high precision and low collateral damage, easing concerns of those worried about effectiveness or civilian casualties.

The Legal Basis The administration’s shift in practice gave rise to important questions regarding the legal basis on which it was proceeding. Gary Solis, then a law professor at the US Military Academy at West Point, believed that the first targeted killings were precedent-setting: “Until just a few months ago, we would all have expressed abhorrence … of targeting individuals off the battlefield. … But now … we are taking a new approach.”113 Amnesty International (2005) pointed out that the United States had historically condemned such actions.114 To allow its strikes to be carried out, the Bush administration was required to craft legal findings internally to the effect that they were permissible. With the exception of Wolfowitz’s CNN gaffe, however, the targeted killing program went entirely unacknowledged officially for the duration of the Bush presidency. The administration did not publicly proffer any legal basis for its actions. It was therefore unclear as a matter of public record whether the executive order banning assassination had been, in any formal way, amended or a new interpretation adopted. Despite the absence of official acknowledgement, the outline of the legal interpretations supporting the new policy—and reconciling it with existing rules—did begin to take shape in media coverage and subsequent discussion within the legal community.115 The foundation of the administration’s legal case was the sweeping authority of the Authorization for Use of Military Force,116 passed one week after 9/11 with only a single member of Congress opposed. This legislation was ground-breaking in empowering the president to target non-state actors “even to the individual

113 Mark McManus, “A U.S. License to Kill,” Los Angeles Times, 11 January 2003, http://articles.latimes.com/2003/ jan/11/world/fg-predator11. 114 Amnesty International, Guantanamo and Beyond: The Continuing Pursuit of Unchecked Executive Power, AMR 51/063/2005, 13 May 2005. 115 Barton Gellman, “CIA Weighs ‘Targeted Killing’ Missions Administration Believes Restraints Do Not Bar Singling Out Individual Terrorists,” Washington Post, 28 October 2001, https://www.washingtonpost.com/ archive/politics/2001/10/28/cia-weighs-targeted-killing-%20missions/92d127df-aa07-48d5-9cab-306e6922c229/; Rennie, “Bush Orders Shoot to Kill”; McManus, “U.S. License to Kill.” 116 Authorization for Use of Military Force, Public Law 107-40, 115 Stat. 224–25. SECURITY STUDIES 687

level,”117 and shifting counterterrorism from a criminal justice framework to a war paradigm, in which terrorists could be designated enemy combatants. This facilitated invoking self-defense as grounds for use of lethal force,118 buttressed by an expansive interpretation of the concept of imminence as it pertained to terrorist threats. The administration’s National Security Strategy, published in 2002, asserted that the United States needed to “adapt the concept of imminent threat to the capabilities and objectives of today’s adversaries.”119 One administration official, speaking on condition of anonymity, later explained that this legal framework was crafted precisely because the administration did not wish to simply rescind the assassination ban: “The self-defense exemption was a legal fabrication to save face, to say, ‘Yes, it still applies, but just not in these cases.’”120 Deputy Secretary of State Richard Armitage later recalled that President Bush issued a further order in early 2002, supplementing his earlier authorization of the CIA’s targeting program. “I don’t recall necessarily the words, ‘targeted killings,’ but it was clearly that. It was loosening the Executive Order 12333 against assassinations. And the reasoning as I recall was, its wartime, it’s not an assassination, it’s war.”121 Robert Grenier, the CIA’s leading counter-terrorism official during this period, would later acknowledge that a significant shift in legal interpretation had taken place: “Activities that before 9/11 we would have said were assassination—now we are simply exercising our sovereign right of self-defense.”122

Secrecy as Alternative to Justification or Advocacy of Normative Innovation Excepting the Wolfowitz moment in November 2002, the Bush administration, unlike its successor, committed fully to official secrecy regarding the targeted killing program. Officials refused to publicly state the number of drone strikes authorized, the number of estimated casualties, or by what criteria individuals were selected for the list of targets. When journalists

117 Matthew Weed, The 2001 Authorization for Use of Military Force: Background in Brief, CRS Memorandum 10 July 2013, (Washington, DC: Congressional Research Service, 2013), 1. 118 Natalino Ronzitti, “The Legality of Covert Operations Against Terrorism in Foreign States,” in Enforcing International Law Norms Against Terrorism, ed. Andrea Bianchi and Yasmin Naqvi (New York: Hart Publishing, 2004), 18. 119 US National Security Council, “Prevent Our Enemies From Threatening Us, Our Allies, and Our Friends with Weapons of Mass Destruction,” U.S. National Security Strategy, 17 September, 2002, https://www.state.gov/ documents/organization/63562.pdf. 120 Waterman, “Assassination Ban.” 121 Chris Woods, America's Secret Drone Wars (London: Hurst Publishers, 2014), 14. Regarding Executive Order 12333: see footnote 42. 122 Charles A. Blanchard, Kenneth Anderson, and Robert Grenier, “Rules of Engagement: The Legal, Ethical and Moral Challenges of the Long War,” Panel Discussion, Collaboration between the Center for the Study of the Drone and Carnegie Council for Ethics in International Affairs, 21 February 2014, http://dronecenter.bard.edu/ transcript-rules-engagement. 688 A. BANKA AND A. QUINN

pressed the White House for such details, spokesman Ari Fleischer stone- walled: “There are going to be things that are done that the American people may never know about.”123 It similarly rebuffed international inquiries. Letters from advocacy groups, including Amnesty International, requesting clarification of such strikes’ legal basis simply went unanswered.124 Published strategic documents contained no mention of either targeted killings or drone strikes. Officially, for all externally-facing purposes, the targeted killing program simply did not exist. As noted earlier, one motive for this secrecy was diplomatic. Permission from the Pakistani and Yemeni governments for US strikes on their territory was predicated on an American commitment to not publicly claim them. As awareness of the strikes widened through media reporting, however, the utility of secrecy as a tool for deflecting awkward questions became apparent. The United States had previously condemned the Israeli policy of targeted killing, but how did this new US program differ? The administration had no credible answer ready for public consumption. Privately, however, administration officials would admit the US policy rested on the same legal rationale as Israel’s,125 the difference being only of “scale and frequency.”126 Anonymous officials occasionally offered verbal assurances that the process for selecting targets and carrying out strikes was careful: “We have more lawyers than Predator pilots,” one was quoted saying.127 But no outsider had access, via any official route, to the information required to evaluate such claims. With such opacity at the official level, Bradley J. Strawser argues, each strike “might as well be considered an assassination or just plain murder.”128

The Obama Administration: Quasi-secrecy and Normalization Inheriting and Expanding Targeted Killing On taking office, President Obama quietly inherited the secret targeted killing program without public statement. On December 9, 2008, CIA Director Michael Hayden briefed the president-elect on all classified missions run by the agency, “the nature of those actions, and the written findings from Bush and other presidents.”129 Four days before his inauguration, Obama met the outgoing president, who advised him that

123 Walter Pincus, “US Nails Six In Yemen,” Washington Post, 7 November 2002. 124 Amnesty International, “Yemen/USA: Government must not sanction extra-judicial executions,” 8 November, 2002, https://www.amnesty.org/en/documents/AMR51/168/2002/en. 125 Mayer, “Predator War.” 126 Hosenball, “Opening Shot.” 127 McManus, “U.S. License to Kill.” 128 Bradley J. Strawser, Killing by Remote Control: The Ethics of an Unmanned Military (Oxford: Oxford University Press), 183. 129 Bob Woodward, Obama's Wars (New York: Simon & Schuster, 2011), 5. SECURITY STUDIES 689

the drone strike program was one of two he would find most valuable.130 The appeal of targeted strikes for Obama can be readily understood in light of his positions as a candidate. He had been critical of large, costly military deployments such as that in Iraq. He had promised to make the US military “more stealthy, agile, and lethal in its ability to capture or kill terrorists.”131 He had also promised action in Pakistan: “If we have action- able intelligence about high-value terrorist targets and President Musharraf won’t act, we will.”132 The new administration almost immediately increased the frequency of drone strikes. Three days after Obama’s inauguration, the CIA carried out a targeted strike inside Pakistan. This hit the wrong target, resulting in “a tense back-and-forth over the CIA’s vetting procedures for drone attacks” between the President and Hayden.133 But despite this, “there was no ser- ious disagreement with the decision to continue the program.”134 Less than a month later, the CIA launched another attack, targeting Pakistani Taliban leader Baitullah Mehsud, which killed more than thirty people.135 President Obama ended his first year having authorized more strikes than Bush had in eight years.136 Those killed included high-value militants, such as Mehsud, Osama bin Laden’s oldest son Saad bin Laden, and Tahir Yuldashev, leader of the al Qaeda-associated Islamic Movement of Uzbekistan.137 The following year, the number of strikes doubled, to 128.138 CIA requests for wider zones of permitted targeting in Pakistan and more armed UAVs were approved.139 This information was not released publicly; the

130 David E. Sanger, “Obama's Secret Wars,” World Affairs Council of Northern California, 14 June 2012, http:// www.worldaffairs.org/media-library/event/933#.WvN3cIgvxPY. The other was preparation for a cyber-attack on Iran’s nuclear program. 131 Barack Obama, “Speech at Woodrow Wilson Center,” August 1, 2007, http://www.cfr.org/elections/obamas- speech-woodrow-wilson-center/p13974. 132 Obama, “Speech at Woodrow Wilson.” 133 Daniel Klaidman, “Drones: The Silent Killers,” Newsweek, 28 May 2012, http://www.newsweek.com/drones- silent-killers-64909. 134 Peter Baker, “Obama’s War Over Terror,” New York Times Magazine, 4 January 2010, http://www.nytimes.com/ 2010/01/17/magazine/17Terror-t.html?_r¼0. 135 Pir Zubair Shah, “U.S. Airstrike Kills 30 in Pakistan,” New York Times, 4 February 2009, http://www.nytimes.com/ 2009/02/15/world/asia/15pstan.html?_r¼2&; Hafiz Wazir, “U.S. Missile Strike Kills 25 Militants in Pakistan,” Reuters, 14 February 2009, http://www.reuters.com/article/2009/02/14/us-pakistan-missiles- idUSTRE51D0XH20090214. 136 “Obama’s Covert Drone War in Numbers: Ten Times More Strikes than Bush,” Bureau of Investigative Journalism, 17 January 2017, https://www.thebureauinvestigates.com/stories/2017-01-17/obamas-covert-drone- war-in-numbers-ten-times-more-strikes-than-bush. 137 Joby Warrick, “One of Osama Bin Laden's Sons Reported Dead After CIA Missile Strike,” Washington Post,24 July 2009, http://www.washingtonpost.com/wpdyn/content/article/2009/07/23/AR2009072301966.html; Bill Roggio, “Tahir Yuldashev Confirmed Killed in US Strike in South Waziristan,” FDD’s Long War Journal,4 October 2009, http://www.longwarjournal.org/archives/2009/10/tahir_yuldashev_conf.php; Hamid Ismailov, “‘Feared’ Uzbek Militant in Pakistan,” BBC, 3 October 2009, http://news.bbc.co.uk/1/hi/world/south_asia/ 8287714.stm. 138 “Obama’s Covert Drone War.” 139 Jack Goldsmith, “How Obama Undermined the War on Terror,” New Republic, 1 May 2013, http://www. newrepublic.com/article/112964/obamas-secrecy-destroying-american-support-counterterrorism. 690 A. BANKA AND A. QUINN

program remained shrouded in official secrecy. Public records were instead compiled by outsiders, such as the New America Foundation (NAF) and the Bureau of Investigative Journalism (BIJ), counting and detailing drone strikes to the best of their ability using information gleaned from other sources.140 By the end of Obama’s two terms in office, the BIJ’s numbers suggested he had authorized a total of 563 strikes in Pakistan, Somalia, and Yemen.141 NAF estimated 353 strikes carried out in Pakistan, killing between 1,934 and 3,094 (estimated), with between 129 and 162 of those thought to be civilians.142 In addition to being more capable of carrying out targeted killings thanks to drone technology, the Obama administration had a further incentive to favor them. Obama had criticized both extrajudicial detention and enhanced interrogation (considered by many to be torture) as practiced by the Bush administration. Targeted killing could obviate the need for either, while still acting to neutralize the perceived threat. Hayden, who concluded his tenure as CIA Director in February 2009, believed this dynamic partly motivated the incoming administration’s enthusiasm for the program.143 Likewise, Rizzo judged that the administration “never came out and said they would start killing people because they couldn’t interrogate them, but the implication was unmistakable.”144 We might also surmise that an increase in the number of drones deployed—and advances in their technological capabilities—boosted US capacity to identify new targets without the need for detention and interrogation to acquire intelligence regarding the identity and location of hostile actors.

From Secrecy to Quasi-secrecy: Selective Disclosure and Strategic Leaks During its first years, the Obama administration maintained its prede- cessor’s approach to secrecy, keeping the targeted killing program tightly under wraps. Following the first strike of the Obama presidency, White House press secretary Robert Gibbs refused to officially acknowledge the

140 An important side-point should be noted here: NAF and BIJ counted drone strikes. Not all these were targeted killings by our criteria: some were so-called signature strikes, authorized based on observed behavior or circumstances without identity of targeted individuals being known. Though the number of both types of strike increased during these years, separating the two without official confirmation of targets is challenging. Both targeted killings and signature strikes are in turn distinct from killing by US military personnel operating in conventional combat spaces, although issues of secrecy and disclosure may also be relevant to these. See for example the controversial July 12, 2007 Baghdad airstrikes and the subsequent release of helicopter footage of the incident by Wikileaks. Chris McGreal, “Wikileaks Reveals Video Showing US Air Crew Shooting Down Iraqi Civilians,” Guardian, 5 April 2010, https://www.theguardian.com/world/ 2010/apr/05/wikileaks-us-army-iraq-attack. 141 “Obama’s Covert Drone War.” 142 “Drone Strikes: Pakistan.” 143 Spycast, “Playing to the Edge: An Interview with Gen. Michael Hayden,” 3 May, 2016, https://www. spymuseum.org/multimedia/spycast/episode/playing-to-the-edge-an-interview-with-gen-michael-hayden/. 144 Mazzetti, Way of the Knife, 281. SECURITY STUDIES 691

event, saying only: “I’m not going to get into these matters.”145 This would become a routine response. During this period, the rule book for targeted strikes was considered so highly classified that it was “hand-carried from office to office rather than sent by e-mail.”146 “We didn’t even know if we were allowed to write the word ‘drone’ in an unclassified e-mail,” one State Department official reported.147 After leaving office, Gibbs revealed that “when I went through the process of becoming press secretary, one of the first things they told me was: “You are not even to acknowledge the drone program. You’re not even to discuss that it exists.”148 Behind the wall of official silence, there was disagreement on the merits of such strict secrecy,149 especially as the increasing frequency of operations made public reportage of strikes inevitable. Secretary of State Hillary Clinton privately complained that blanket denial made it impossible to rebut exaggerated accusations regarding civilian casualties.150 Leon Panetta, who oversaw the program for years as CIA Director, confirmed later that some officials advocated “full public explanation of each operation,” and that he also felt President Obama should be “far more transparent” in explaining the policy.151 With time, secrecy came into tension with another imperative: securing credit for waging an effective counterterrorism campaign. This led to numerous instances in which officials sought to walk the line of publicly praising the program’s effectiveness while simultaneously refusing to directly acknowledge its existence. Two months into the Obama drone campaign, Chairman of the Joint Chiefs of Staff Mike Mullen was asked in an interview about the apparent increase in strikes under the new president. He declined to confirm details, but stated that threats in Pakistan “need to be addressed, have been addressed, and will continue to be addressed.”152 In similar fashion, John Brennan, then deputy

145 Jeffrey Smith, Candace Rondeaux, and Joby Warrick, “2 U.S. Airstrikes Offer a Concrete Sign of Obama's Pakistan Policy,” Washington Post, 24 January 2009, http://www.washingtonpost.com/wp-dyn/content/article/ 2009/01/23/AR2009012304189.html. 146 Scott Shane, “Election Spurred a Move to Codify U.S. Drone Policy,” New York Times, 24 November 2012, http://www.nytimes.com/2012/11/25/world/white-house-presses-for-drone-rule-book.html?_r¼0. 147 Steve Coll, “The Unblinking Stare,” New Yorker, 24 November 2014, https://www.newyorker.com/magazine/ 2014/11/24/unblinking-stare. 148 Michael Calderone, “Robert Gibbs Told Not to Acknowledge Drone Program Exists as White House Press Secretary,” Huffington Post, 24 February 2013, http://www.huffingtonpost.com/2013/02/24/robert-gibbs- drones-white-house_n_2753183.html. 149 Julian E. Barnes, “U.S. Rethinks Secrecy on Drone Program,” Wall Street Journal, 17 May 2002, http://www.wsj. com/articles/SB10001424052702303879604577410481496895786; Michael Hirsh and Kristin Roberts, “Why the Drone Memos Are Still Secret,” Atlantic, 22 February 2013, http://www.theatlantic.com/international/archive/ 2013/02/why-the-drone-memos-are-still-secret/273436. 150 Scott Shane, “U.S. Attacks, Online and From the Air, Fuel Secrecy Debate,” New York Times, 7 June 2012, http://www.nytimes.com/2012/06/07/world/americas/drones-and-cyberattacks-renew-debate-over-security. html?_r¼0; Hilary Clinton, Hard Choices (New York: Simon & Schuster, 2014), 690. 151 Leon Panetta, Worthy Fights (New York: Penguin Press, 2014), 388–91. 152 Chris Wallace, “Transcript: Adm. Mullen on ‘FOX News Sunday,’” FOX News Sunday with Chris Wallace,2 March 2009, http://www.foxnews.com/on-air/fox-news-sunday-chris-wallace/2009/03/02/transcript-adm- mullen-fox-news-sunday. 692 A. BANKA AND A. QUINN

national security advisor for counterterrorism, refused to directly address the program but offered the assurance that all counterterrorism operations were “legal,”“highly effective,” and “very focused.”153 CIA spokesman Paul Gimigliano declined to acknowledge targeted killings, stating only that tools used by the agency were “exceptionally accurate, precise and effective.”154 CIA Director Panetta, questioned at the Pacific Council in 2009, adopted a similar approach: “Obviously because these are covert and secret operations I can’tgo into particulars. I think it does suffice to say that these operations have been very effective because they have been very precise in terms of the targeting and it involved a minimum of collateral damage.”155 In another interview, he praised the CIA’s counterterrorism efforts as the “most aggressive” in history, yet stopped short of stating exactly what methods he was referring to.156 Most controversially, the administration further engineered favorable coverage by means of leaks to the media on condition of anonymity. In 2011, David Ignatius of the Washington Post reported that the White House was willing to discuss the top-secret drone campaign with him, but only when resulting coverage promoted the precise and effective nature of the program.157 “These rules about covert activities can be bent when it becomes politically advantageous,” he explained. Jonathan Landay of Reuters reported a similar experience, noting that when information worked in the administration’sfavor,“you get quite a detailed readout.”158 Leaks such as these allowed officials to advance, for public consumption, information carefully selected to portray the efficacy and legality of the program in the most favorable possible light. Alston maintains that leaks “played a powerful role in legitimizing the targeted killings program.”159 Meanwhile, the posture of official secrecy retained in parallel provided a protective barrier behind which officials could step at any moment of their choosing. This option was especially useful when faced with the most challenging questions arising from the practice, such as the outer limit of the legal authority to kill being claimed by

153 Spencer S. Hsu and Joby Warrick, “Obama Plans to Use More Than Bombs and Bullets to Fight Terrorism,” Washington Post, 6 August 2009, http://www.washingtonpost.com/wp-dyn/content/article/2009/08/05/ AR2009080503940.html; Peter Finn and Joby Warrick, “Under Panetta, a More Aggressive CIA,” Washington Post, 21 March 2010, http://www.washingtonpost.com/wpdyn/content/article/2010/03/20/ AR2010032003343.html. 154 Scott Shane, “C.I.A. to Expand Use of Drones in Pakistan,” New York Times,4December2009,http://www.nytimes. com/2009/12/04/world/asia/04drones.html?adxnnl ¼1&pagewanted¼all&adxnnlx ¼1427983392- XmSow7thnPVtaUwoslbDqw; Scott Shane and Eric Schmitt, “C.I.A. Deaths Prompt Surge in U.S. Drone Strikes,” New York Times, 22 January 2010, http://www.nytimes.com/2010/01/23/world/asia/23drone.html?_r¼0. 155 Leon Panetta, “Director’s Remarks at the Pacific Council on International Policy,” May 18, 2009, US Central Intelligence Agency, https://www.cia.gov/news-information/speeches-testimony/directors-remarks-at-pacific- council.html. 156 Joby Warrick and Peter Finn, “CIA Director Says Secret Attacks in Pakistan Have Hobbled al-Qaeda,” Washington Post, 18 March 2010, http://www.washingtonpost.com/wpdyn/content/article/2010/03/17/ AR2010031702558.html?sid¼ST2010031703003. 157 Tara McKelvey, “Inside the Killing Machine,” Newsweek, 13 February 2011, http://www.newsweek.com/inside- killing-machine-68771. 158 McKelvey, “Inside the Killing Machine.” 159 Alston, “The CIA,” 89. SECURITY STUDIES 693

the executive or the details of targeted strikes gone awry. In this way, the antagonistic incentives for secrecy and disclosure interacted such that the program became, as Mark Phythian has observed, “neither fully covert nor overt.”160

The Gradual, Partial Official Opening Up In 2010, State Department Legal Adviser Harold Koh presented an assessment to the American Society of International Law, a few paragraphs long, of how targeted killings could fall within the laws of war.161 Prior to the speech, he had resisted engaging publicly with legal debates on the subject.162 An administration lawyer later stated that Koh’s public defense was the end result of an “unbelievably excruciating process of crafting a public statement that all the agencies can agree on.”163 Alston welcomed the statement as “a good start,” but noted that the UN had “been asking for a legal rationale for quite a long time,” and Koh’s statement failed to answer key legal questions.164 2011 was an inflection point in intensifying pressure on the administration to account in some on-the-record way for the program and its legal basis, perhaps because it saw the two highest-profile killings to occur during the Obama presidency. First, on May 2, Osama bin Laden (whom the United States had been hunting since before 9/11) was killed by a Navy SEAL helicopter raid on a compound in Abbottabad, Pakistan to which he had finally been traced. This was not a typical installment in the targeted killing program as it is defined here, for two reasons. First, it was carried out under the command of the US military rather than by intelligence operatives or contractors (although the CIA was intimately involved). Second, it was immediately announced by the president as a major success and reported in detail by the press, with administration assistance. While it had been planned secretly, it was not a covert operation in that there was no intention to maintain deniability after it had been carried out. Nevertheless, after the initial wave of celebratory reaction, pointed questions did arise regarding the legal basis for what appeared to be a summary execution.165

160 Phythian, “Between Covert and Overt Action,” 286. 161 Harold Hongju Koh, “The Obama Administration and International Law,” (Keynote speech at the Annual Meeting of the American Society of International Law, Washington, DC, March 25, 2010), https://www.state. gov/documents/organization/179305.pdf. 162 Ari Shapiro, “U.S. Drone Strikes Are Justified, Legal Adviser Says,” NPR, 26 March 2010, http://www.npr.org/ templates/story/story.php?storyId¼125206000. 163 Tom Junod, “The Lethal Presidency of Barack Obama,” Esquire, 12 August 2012, http://www.esquire.com/ news-politics/a14627/obama-lethal-presidency-0812/. 164 “UN Special Rapporteur Philip Alston Responds to US Defense of Drone Attacks’ Legality,” Democracy Now, 1 April 2010, http://www.democracynow.org/2010/4/1/drones. 165 Owen Bowcott, “Osama bin Laden: US Responds to Questions About Killing’s Legality,” Guardian, 3 May 2011, https://www.theguardian.com/world/2011/may/03/osama-bin-laden-killing-legality. 694 A. BANKA AND A. QUINN

The administration generally avoided addressing the point, though Attorney General Eric Holder, who found himself before the Senate Judiciary Committee on May 4, responded under questioning that “the operation in which Osama bin Laden was killed was lawful. He was the head of al Qaeda, an organization that had conducted the attacks of September 11. He admitted his involvement. … It was justified as an act of national self-defense.”166 The bin Laden killing thus drew unprecedented attention to some of the key underlying legal issues also raised by the CIA drone strike program. At the same time, however, the ad hoc, one-off nature of the Abbottabad raid and the singularly high public profile of the target—not to mention the direct connection to 9/11—gave the bin Laden killing a sui generis quality. The next substantive public articulation by the administration justifying the broader targeted killing program came at Harvard on September 16, 2011, when Brennan offered a defense for killing beyond “hot” battlefields based on an expansive understanding of imminence of threat.167 He disclosed no operational facts not already in the public domain, but in combination with Koh’s prior statement, Brennan’s remarks began in earnest the process of presenting, on the record, an official legal and normative case for what the executive had been doing for the past decade. At the time of these limited steps, however, the very existence of the program to which this legal reasoning pertained remained officially secret, leading to a degree of self-conscious absurdity. Asked directly, “Does the CIA have a drone program?,” Brennan refused to plainly acknowledge it, replying jokingly: “If the agency did have such a program, I’m sure it would be done with the utmost care, precision … .”168 The New York Times report of the event records that the conclusion of Brennan’s sentence “was garbled by the laughter of the audience.” Brennan’s speech came just fourteen days before the second landmark targeted killing that occurred in 2011—that of Anwar al-Awlaki, carried out by CIA drone strike in Yemen on September 30. This incident placed further strain upon secrecy because the president was eager to publicly claim al-Awlaki’s elimination as a counterterrorism success169 and—because al- Awlaki was American-born—it raised the constitutional stakes regarding the executive’s asserted right to target and kill.

166 Jeremy Pelofsky, James Vicini, “Bin Laden Killing Was U.S. Self-defense: US,” Reuters, 4 May 2011, https:// www.reuters.com/article/us-binladen-selfdefense/bin-laden-killing-was-u-s-self-defense-u-s- idUSTRE74353420110504. 167 John Brennan, “Strengthening Our Security by Adhering to Our Values and Laws”(remarks delivered at Harvard Law School’s Program on Law and Security, Cambridge, Massachusetts, September 16, 2011). 168 Arthur S. Brisbane, “The Secrets of Government Killing,” New York Times, 8 October 2011, http://www.nytimes. com/2011/10/09/opinion/sunday/the-secrets-of-government-killing.html?_r¼0. 169 Barack Obama, “Remarks by the President at the ‘Change of Office’ Chairman of the Joint Chiefs of Staff Ceremony,” September 30, 2011, https://obamawhitehouse.archives.gov/the-press-office/2011/09/30/remarks- president-change-office-chairman-joint-chiefs-staff-ceremony. SECURITY STUDIES 695

Tara McKelvey (2013) notes a surge in press scrutiny from mid-2011 onward: “[From] July 2011 to July 2012, the New York Times, the Washington Post, and the Christian Science Monitor published roughly 120 articles, or more than four times the number of articles from a comparable period in the previous twelve months, that looked at legal aspects of the drone program. In addition, these newspapers published 33 articles that looked at moral aspects of the program, more than three times the number of articles during the previous twelve-month-long period.”170 Responding to this pressure, Brennan addressed an audience at the Wilson Center in 2012 and finally unequivocally admitted: “Yes, in full accordance with the law, and in order to prevent terrorist attacks on the United States and to save American lives, the United States Government conducts targeted strikes against specific al-Qaida terrorists.”171 He further noted that he was speaking following an instruction from President Obama “to be more open with the American people about these efforts,”172 and he proceeded to set out elements of its underlying legal basis. This speech was a landmark moment in the administration’s public handling of the program. Brennan’s remarks were part of a concerted move by the administration: during March and April 2012, several high-level officials engaged in public defense of the administration’s use of drones, including Secretary of Homeland Security Jeh Johnson,173 Attorney General Holder,174 and CIA General Counsel Stephen Preston.175 Finally, in 2013, the president himself delivered a speech at the National Defense University seeking to clarify the administration’s approach to counterterrorism, especially with regard to targeted drone strikes.176 In these public statements aimed at legitimating the program, factors cited as relevant included: the state of exception created by a new type of terrorist threat; the unconventional nature of terrorists as non-uniformed armed combatants; the inaccessible locations of those targeted, which put

170 Tara McKelvey, Media Coverage of the Drone Program, Joan Shorenstein Center on the Press, Politics, and Public Policy Discussion Paper Series #D-77, Harvard University John F. Kennedy School of Government, February 2013, https://shorensteincenter.org/media-coverage-of-the-drone-program/. 171 John Brennan, “The Efficacy and Ethics of U.S. Counterterrorism Strategy” (speech delivered at the Wilson Center, Washington, DC, April 30, 2012), https://www.wilsoncenter.org/event/the-efficacy-and-ethics-us- counterterrorism-strategy. 172 Ibid. 173 Jeh Charles Johnson, “National Security Law, Lawyers, and Lawyering in the Obama Administration,” Yale Law & Policy Review 31, no. 1 (2012): 141. 174 Eric Holder, “Attorney General Eric Holder Speaks at Northwestern University School of Law” (remarks as prepared for delivery at Northwestern University School of Law, Chicago, Illinois, March 5, 2012), https:// www.justice.gov/opa/speech/attorney-general-eric-holder-speaks-northwestern-university-school-law. 175 Stephen Preston, “Remarks of CIA General Counsel Stephen W. Preston at Harvard Law School” (remarks as prepared for delivery at Harvard Law School, Cambridge, Massachusetts, April 20, 2012), https://www.cia.gov/ news-information/speeches-testimony/2012-speeches-testimony/cia-general-counsel-harvard.html. 176 Barack Obama, “Remarks by the President at the National Defense University” (remarks as prepared for delivery at the National Defense University, Washington, DC, May 23, 2013), https://obamawhitehouse. archives.gov/the-press-office/2013/05/23/remarks-president-national-defense-university. 696 A. BANKA AND A. QUINN

them beyond the reach of capture or law enforcement; the US government’s duty to prioritize the lives of the American population; the high risk of imminent attack if the United States did not act; the precision of the technology now available for targeting; and the seriousness and professionalism with which the president and other officials undertook the responsibility of targeting. With regard to the norm against assassination, the administration fell (to use Keating’s terminology) somewhere in between offering justification and advocating innovation. “Assassination,” administration officials said, was “repugnant,”“unlawful,” and not something that the United States practiced or supported.177 But these killings were not assassinations. “The use of that loaded term is misplaced,” said Holder.178 In his speech, Johnson (2012) directly addressed the relevant history, contending that there was a substantial difference between the US government assassination plots of the 1970s and present practice. “Lethal force against a valid military objective, in an armed conflict is consistent with the law of war,” he noted, asserting that the current strikes qualified as such.179 Key to the administration’s justification was the expansive definition of imminence. As noted earlier, this was first sketched officially and publicly by Brennan in his 2011 Harvard speech: “We are finding increasing recog- nition in the international community that a more flexible understanding of ‘imminence’ may be appropriate when dealing with terrorist groups, in part because threats posed by non-state actors do not present themselves in the ways that evidenced imminence in more traditional conflicts. … Over time, an increasing number of our international counterterrorism partners have begun to recognize that the traditional conception of what constitutes an ‘imminent’ attack should be broadened in light of the modern-day capabilities, techniques, and technological innovations of terrorist organizations.”180 Brennan was, to put it mildly, putting a positive spin on the issue of world opinion. Hayden, who had been intimately involved in the drone program during the Bush years, was more frank: “There isn’t a government on the planet that agrees with our legal rationale for these operations, except for Afghanistan and maybe Israel.”181 Nevertheless, this position was codified in a Justice Department memo stating that: “The condition that an operational leader present an ‘imminent’ threat of violent attack against the United States does not require the United States to have

177 Holder, “Holder Speaks at Northwestern”; Johnson, “National Security Law.” 178 Holder, “Holder Speaks at Northwestern.” 179 Johnson, “National Security Law.” 180 Brennan, “Strengthening our Security.” 181 Dolye McManus, “McManus: Who Reviews the U.S. ‘Kill List’?,” Los Angeles Times, 5 February 2012, http:// articles.latimes.com/2012/feb/05/opinion/la-oe-mcmanus-column-drones-and-the-law-20120205. SECURITY STUDIES 697

clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future. … By its nature … the threat posed by Al Qaeda and its associated forces demands a broader concept of imminence … 182

Resisting Scrutiny and Oversight: The Limits of Openness Throughout the tenure of the Obama administration, the American Civil Liberties Union (ACLU) struggled persistently—using the Freedom of Information Act (FOIA)—for greater transparency regarding targeted killing operations and their legal basis. The White House, in response, fought ten- aciously to withhold documents and information. In 2010, the ACLU opened its first lawsuit, asking for “disclosure of the legal basis, scope, and limits on the targeted killing program.”183 In 2012, three additional cases were filed: a lawsuit challenging the killing of al-Awlaki;184 an information request about 2012 targeted killings in Yemen; and an additional request to disclose information about a drone strike in the al-Majalah region in Yemen.185 Aside from one minor ACLU victory in 2014,186 the executive generally succeeded in resisting such demands for disclosure. The administration also successfully minimized the role of Congress. In 2012, twenty-six Members of Congress signed a request for greater transparency, arguing that targeted killings carried major implications for the United States and the public had the right to know what was being done in their name.187 When such requests failed to produce results, Senators used confirmation hearings as a forum to press for more information. In 2011, the Senate Select Committee on Intelligence held a hearing on the nomination of General David Petraeus to be CIA Director. Roy Blunt, Republican of Missouri, used the occasion to press the general for details on targeted killings by drones. In response, Petraeus carefully and cannily focused on drone operations in Afghanistan, where such missions operated in an

182 “Lawfulness of Lethal Operation Directed Against a U.S. Citizen Who Is A Senior Operational leader of Al Qaeda or an Associate Force,” Department of Justice White Paper, 2013, http://msnbcmedia.msn.com/i/ msnbc/sections/news/020413_DOJ_White_Paper.pdf. 183 American Civil Liberties Union, “Request Under Freedom of Information Act,” 13 January 2009, https://www. aclu.org/files/assets/2010-1-13-PredatorDroneFOIARequest.pdf. 184 American Civil Liberties Union, “Al-Aulaqi v. Panetta—Constitutional Challenge to Killing of Three U.S. Citizens,” 4 June 2014, https://www.aclu.org/cases/al-aulaqi-v-panetta-constitutional-challenge-killing-three- us-citizens. 185 Nathan Freed Wessler and Pardis Kebriaei, “Seeking the Truth About U.S. Targeted Killing Strike That Killed Dozens of Women and Children in Yemen,” American Civil Liberty Union (ACLU) blog, 17 April, 2012, https:// www.aclu.org/blog/national-security/seeking-truth-about-us-targeted-killing-strike-killed-dozens-women-and. 186 Charlie Savage, “Court Releases Large Parts of Memo Approving Killing of American in Yemen,” New York Times, 23 June 2014, https://www.nytimes.com/2014/06/24/us/justice-department-found-it-lawful-to-target- anwar-al-awlaki.html. 187 Chris Woods, “‘A Journey into Moral Depravity’—US Congressman Dennis Kucinich on Covert Wars,” Bureau of Investigative Journalism, 29 June 2009, https://www.thebureauinvestigates.com/stories/2012-06-29/a- journey-into-moral-depravity-us-congressman-dennis-kucinich-on-covert-wars. 698 A. BANKA AND A. QUINN

entirely different legal context from those in Pakistan, Yemen, and Somalia. In so doing, he highlighted only the positives: “I would note that the experience of the military with unmanned aerial vehicles is that the precision is quite impressive, that there is a very low incidence of civilian casualties in the course of such operations.”188 In 2013, the same committee pressed Brennan (Obama’s nominee to replace Petraeus) harder about the program, since in his previous role he had been one of its chief architects. In his opening statement, he noted that there was a “widespread debate” within the administration about counterterrorism and that policymakers “wrestled with” lethal operations. But he defended the practice by pointing out that the United States was at war with al Qaeda.189 Senator Ron Wyden of Oregon complained that the committee had never seen a full list of countries in which the CIA carried out lethal operations.190 Further, it had seen only “two of an estimated 11 legal opinions” on the program.191 The hearing as a whole served to expose just how little information Congress had, prompting Committee Chair Diane Feinstein to tell reporters afterwards: “I think that this has gone about as far as it can go as a covert activity.”192 In November 2013, the Committee voted 13–2 to require the CIA to reveal how many individuals it believed to have been killed or injured in its strikes.193 By April 2014 however, this initiative was thwarted when the full Senate removed this specific demand from the relevant bill. Director of National Intelligence James Clapper led administration lobbying against the requirement, arguing that: “To be meaningful to the public, any report including the information described above would require context and to be drafted carefully so as to protect against the disclosure of intelligence sources and methods or other classified information.”194 Official numerical data regarding strikes and casualties would not ultimately be released by the administration until July 2016, and the figures provided at that time were

188 US Senate Select Committee on Intelligence, “Hearing on the Nomination of General David Petraeus to be the Director of the Central Intelligence Agency,” C-Span broadcast 23 June 2011, https://www.c-span.org/video/? 300180-1/cia-director-nomination. 189 US Senate Select Committee on Intelligence, Open Hearing on the Nomination of John O. Brennan to Be Director of the Central Intelligence Agency, Senate Hearing 113-31, 7 February 2013, https://www.intelligence. senate.gov/hearings/open-hearing-nomination-john-o-brennan-be-director-central-intelligence-agency. 190 Ibid. 191 Chris Anders, “Obama's Drone Killing Program Slowly Emerges from the Secret State Shadows,” Guardian,23 March 2013, http://www.theguardian.com/commentisfree/2013/mar/26/obama-drone-killing-program- secret-state. 192 Mark Mazzetti and Scott Shane, “Drones Are Focus as C.I.A. Nominee Goes Before Senators,” New York Times, 7 February 2013, http://www.nytimes.com/2013/02/08/us/politics/senate-panel-will-question-brennan-on- targeted-killings.html. 193 Mark Hosenball, “Senate Panel Approves Beefed-up Oversight of Drone Attacks,” NBC News, 8 November 2013, http://www.nbcnews.com/news/other/senate-panel-approves-beefed-oversight-drone-attacks- f8C11566192. 194 Spencer Ackerman, “US Senators Remove Requirement for Disclosure Over Drone Strike Victims,” Guardian,28 April 2014, https://www.theguardian.com/world/2014/apr/28/drone-civilian-casualties-senate-bill- feinstein-clapper. SECURITY STUDIES 699

markedly lower than those compiled by outside organizations, leading the New York Times and others to complain that they “answer few questions, and raise many.”195 The administration was similarly resistant to full disclosure of its detailed legal reasoning. It shared with Congress the memos providing legal rationale for the targeted killing of al-Awlaki only when one of the co-authors, David Jeremiah Barron, had his nomination for the 1st US Circuit Court of Appeals blocked until the administration yielded. Even then, it only “allowed lawmakers from a secure room in the Senate, to view copies of two memos written by Barron.”196 The administration declined to share them with the press or public. In 2016, a Stimson Center report accused the administration of “obstructing efforts to develop greater oversight and accountability mechanisms” and reinforcing a “culture of secrecy surround- ing the use of armed drones.”197

The Normalization of Targeted Killing The preceding sections have demonstrated that a substantial shift in government practice took place during the Bush and Obama presidencies. A category of killing that had been treated as forbidden between 1976 and 2001 became routine practice. The change occurred first in secret, then became more widely known under the Obama administration as the scale of the program increased. A shift of this kind had self-evident potential to generate controversy and opposition. But the Obama administration was ultimately successful in securing and maintaining public support for its actions. A 2012 Washington Post poll found 83% support for Obama’s targeted killing policy.198 A year later, a different survey taken by Gallup showed that almost two-thirds of Americans (65%) approved of the government striking targeted individuals in Pakistan, Yemen, and Somalia.199 While there were fluctuations over subsequent years, majority support was consistent.200 This was true among both Republicans and Democrats and held even when respondents were

195 Scott Shane, “Drone Strike Statistics Answer Few Questions, and Raise Many,” New York Times, 3 July 2016, https://www.nytimes.com/2016/07/04/world/middleeast/drone-strike-statistics-answer-few-questions- and-raise-many.html. 196 Azmat Khan, “The Unexpected Way Congress Is Making the Drone Program More Transparent,” Al-Jazeera,23 May 2014, http://america.aljazeera.com/watch/shows/america-tonight/articles/2014/5/23/the-unexpected- waycongressismakingthedroneprogrammoretransparent.html. 197 Stimson Center, “Grading Progress on US Drone Policy: Report card,” 23 February 2016, http://www.stimson. org/content/grading-progress-us-drone-policy. 198 Scott Wilson and Jon Cohen, “Poll Finds Broad Support for Obama’s Counterterrorism Policies,” Washington Post, 8 February 2012, http://www.washingtonpost.com/politics/poll-finds-broad-support-for-obamas- counterterrorism-policies/2012/02/07/gIQAFrSEyQ_story.html. 199 Alyssa Brown and Frank Newport, “In U.S., 65% Support Drone Attacks on Terrorists Abroad,” Gallup News,25 March 2013, http://www.gallup.com/poll/161474/support-drone-attacks-terrorists-abroad.aspx. 200 Pew Research Center, “Public Continues to Back U.S. Drone Attacks,” Pew Research Center US Politics & Policy, 28 May 2015, http://www.people-press.org/2015/05/28/public-continues-to-back-u-s-drone-attacks. 700 A. BANKA AND A. QUINN

prompted to consider strikes against American citizens living overseas or reminded of the distinction between drone strokes carried out by the CIA and the US military.201 The reasonable conclusion to be drawn is that public acceptance of the practice was by this time active, not merely premised on ignorance. Organizations dedicated to civil liberties, such as the ACLU, continued to object strongly. But notwithstanding their opposition, the executive was also successful in obtaining consent from the overwhelming bulk of the political elite and governmental institutions. Congress, regard- less of the party in the majority—which varied over the course of the period—took no meaningful steps to obstruct the policy. Neither did the courts. Support within the relevant executive agencies was not unanimous. Elliot Ackerman, a CIA officer during the Obama administration, notes the presence of internal dissent, even when official lawyers had carefully articulated for internal purposes a distinction between targeted killing and assassination and blessed the legality of the former. “The discomfort of my colleagues, where it existed, didn’t stem from the act itself. … The discomfort existed because it felt like we were doing something, on a large scale, that we’d sworn not to. Most of us felt as though we were violating Executive Order 12333. Everybody knew what was happening—senior intelligence officials, general officers, the administration, even the American people, who ostensibly would not tolerate assassinations carried out in their name.”202 Similarly, Cameron Munter, Obama’s Ambassador to Pakistan, resigned from his post, complaining privately that “he didn’t realise his main job was to kill people.”203 Yet such objections were marginalized and could not obstruct the program’s operation. A major indicator of how fully the practice was normalized was the extent to which the targeted killing program altered the structures and activities of the CIA itself. Locating and targeting militants on a global basis became the agency’s primary task.204 “We went from a purely espionage organization to more of an offensive weapon, a paramilitary organization where classic spying was less important,” a senior officer explained.205 From having three hundred employees before 9/11, the CIA’s

201 Micah Zenko, “U.S. Public Opinion on Drone Strikes,” Council on Foreign Relations, 18 Mar 2013, https://www. cfr.org/blog/us-public-opinion-drone-strikes. 202 Elliot Ackerman, “Assassination and the American Language,” New Yorker, 20 November 2014, http://www. newyorker.com/news/news-desk/assassination-american-language. 203 Clive Stafford Smith, “We Are Sleepwalking into the Drone Age, Unaware of the Consequences,” Guardian,2 June 2012, http://www.guardian.co.uk/commentisfree/2012/jun/02/drone-age-obama-pakistan. 204 Cogan, “Hunters Not Gatherers,” 316. 205 Greg Miller, “CIA Closing Bases in Afghanistan as It Shifts Focus Amid Military Drawdown,” Washington Post, 23 July 2013, https://www.washingtonpost.com/world/national-security/cia-closing-bases-in-afghanistan- as-it-shifts-focus-amid-military-drawdown/2013/07/23/7771a8c2-f081-11e2-a1f9-ea873b7e0424_story. html?utm_term¼.b6eda00c9375. SECURITY STUDIES 701

Counterterrorism Center grew to two thousand.206 Mark Mazzetti estimates that more than half of those joining the agency after 9/11 focused exclusively on manhunt and targeted killing operations.207 While Obama did not initiate this institutional shift, he did accelerate it, propelled by technological advance. Under his authority, the CIA modernized Bush-era targeting practices, turning the kill list into a more sophisticated, con- stantly-updated database in which “biographies, locations, known associates and affiliated organizations” were catalogued.208 Updating the target list became a routinized bureaucratic process, with more than one hundred members of the national security apparatus vetting whom should be targeted and where.209 Targeted killings were no longer exceptional or rare. On the contrary, they were routine and administered systematically.210 The administration could have sought legitimacy for this shift at the outset through, in Keating’s terminology, either overt justification or innovation: that is, through open and active advocacy for the proposition that targeted killing was compatible with established norms, or else that those norms should be updated to render it permissible. Alternatively, it could have done all in its power to keep the killings entirely secret, thus evading the need for legitimation and the risk of failure and backlash entailed in seeking it. The case detail we have presented here makes it clear that, in practice, the administration declined to make a straight choice between these alternatives, pursuing instead a hybrid path to legitimation via quasi-secrecy. That is: it maintained a tight formal regime of official secrecy, combined with the simultaneous, often unofficial, release of select information designed to portray the efficacy and legality of the program in the most favorable light. Such disclosures allowed the public to become accustomed over time to the existence of targeted killing as US government practice, and this contributed to the goal of normalizing it in the eyes of key domestic audiences. At the same time, official secrecy relieved officials of the need to publicly address inconvenient or unpleasant facts arising from operations or tackle the ultimate logical implications of the program’s legal underpinnings, such as locating definitively the outer limits of the executive’s asserted prerogative to kill.

206 Greg Miller and Julie Tate, “CIA Shifts Focus to Killing Targets,” Washington Post, 1 September 2011, http://www.washingtonpost.com/world/national-security/cia-shifts-focus-to-killing-targets/2011/08/30/ gIQA7MZGvJ_story.html. 207 Mazzetti, Way of the Knife. 208 Greg Miller, “Plan for Hunting Terrorists Signals U.S. Intends to Keep Adding Names to Kill Lists,” Washington Post, 23 October 2012, http://www.washingtonpost.com/world/national-security/plan-for-hunting-terrorists- signals-us-intends-to-keep-adding-names-to-kill-lists/2012/10/23/4789b2ae-18b3-11e2-a55c-39408fbe6a4b_ print.html. 209 Jo Becker and Scott Shane, “Secret ‘Kill List’ Proves a Test of Obama’s Principles and Will,” New York Times, 29 May 2012, http://www.nytimes.com/2012/05/29/world/obamas-leadership-in-war-on-al-qaeda.html?_ r¼1&ref¼politics. 210 Richard Adams and Chris Barrie, “The Bureaucratization of War: Moral Challenges Exemplified by the Covert Lethal Drone,” Ethics & Global Politics 6, no. 4 (December 2013): 248. 702 A. BANKA AND A. QUINN

The administration’s success in this case suggests we should consider secrecy not as a binary—and (as some have argued) temporary and counterproductive—alternative to legitimation. Rather, blended with selective disclosure in a strategy of quasi-secrecy, it can be part of an effective mechanism for normalizing potentially controversial innovation. By the time the Obama administration finally officially avowed the targeted killing program, articulated its legal basis, and began to present an overt case in support of its legitimacy, the core operational facts had been de facto publicly known—and painted in a positive light—for years. Consequently, its ultimate, belated official acknowledgement was received by the public not as the shocking announcement of a highly controversial innovation, but merely as confirmation of a long-established government practice, the legal and normative merits of which a reasonable but non-expert observer might suppose had already long since been debated and settled. The moment at which—in an overt-advocacy-centred model of legitimation—targeted killing should have been pitched to the public as a major but desirable shift in practice simply never occurred. At the time when the shift took place and became de facto publicly known, and for many years thereafter, the executive’s position was that official secrecy prevented officials from debating its merits or even frankly acknowledging that it had occurred. By the time the administration was prepared to avow the operational facts of its actions and the legal reasoning underlying them—a sine qua non for meaningful debate—they had ceased to seem sufficiently novel to generate the energetic public engagement they once might have. To the observer’s eye, targeted killing appeared to move directly from the category of “outside the bounds of official discussion,” to that of “uncontroversial long-established practice,” with no way-station in between. For years, the official view was that the time was not yet right to openly litigate the merits of the policy, until all at once it was too late. The utility of quasi-secrecy lies precisely in facilitating this move: it advances the goal of legitimation by cultivating a widespread impression that open debate, resulting in consent, must surely have occurred at an earlier moment, while in fact serving to avert its occurrence at any point. In this way, even a norm of substantial weight may be killed sufficiently softly that the precise moment of its pass- ing fails to register. The ethical and political virtues of such a strategy are— clearly—open to question, but this case provides proof of concept for its efficacy. This will no doubt be of interest to future government officials keen to adopt and legitimate potentially controversial new practices. Those who do not identify with the executive branch in this story, however, may consider it a warning regarding maneuvers for which they should remain vigilant. SECURITY STUDIES 703

Acknowledgments The authors would like to thank numerous colleagues for constructive comments on previous drafts of this piece, especially: Lindsay Clark, David Dunn, Scott Edwards, Marco Vieira, Nicholas Wheeler, Stefan Wolff, and Nicholas Wright. Thanks also to Luca Trenta for many valuable conversations, in various cities, about historical US intelligence operations and the assassination ban. Work-in-progress versions of the article were presented on panels at the annual conventions of the British International Studies Association (BISA) US Foreign Policy Group and the International Studies Association (ISA), and the authors thank those who attended and offered feedback. The authors are also grateful to the anonymous reviewers for Security Studies, who provided thoughtful engagement leading to significant improvement.